119 

.5 

A57 

DOCUMENTS 
OEPT. 


X 

CANADIAN   QUESTIONS. 


NORTHERN  BOUNDARY 


OF   THE 


UNITED  STATES. 


THE  DEMARCATION  OF  THE  BOUNDARY  BETWEEN  THE  UNITED  STATES 
AND  CANADA,  FROM  THE  ATLANTIC  TO  THE  PACIFIC,  WITH 
PARTICULAR  REFERENCE  TO  THE  PORTIONS  THEREOF 
WHICH  REQUIRE  MORE  COMPLETE  DEFINI 
TION  AND  MARKING. 


REPORT    PREPARED    FOR    THE    DEPARTMENT    OF    STATE 

BY 
CHANDLER    P.  ANDERSON, 

i9oe. 


WASHINGTON  I 

GOVERNMENT  PRINTING  OFFICE. 

i9oe. 


CANADIAN   QUESTIONS. 


NORTHERN  BOUNDARY 


UNITED  STATES. 


THE  DEMARCATION  OF  THE  BOUNDARY  BETWEEN  THE  UNITED  STATES 
AND  CANADA,  FROM  THE  ATLANTIC  TO  THE  PACIFIC,  WITH 
PARTICULAR  REFERENCE  TO  THE  PORTIONS  THEREOF 
WHICH  REQUIRE  MORE  COMPLETE  DEFINI 
TION  AND  MARKING, 


REPORT    PREPARED    FOR    THE    DEPARTMENT    OF    STATE 

BY 
CHANDLER    P.   ANDERSON, 

iooe. 


WASHINGTON  t 

GOVERNMENT  PRINTING  OB-BICE. 
1006. 


DOCUMENTS 
DEPT. 


TABLE  OF  CONTENTS. 


PART  I. 

The  northeastern  boundary. 

Page. 

The  boundary  through  Passamaquoddy  Bay 3 

From  the  mouth  of  the  St.  Croix  River  to  the  St.  Lawrence  River 8 

Negotiations  concerning  the  northeastern  boundary   question  and  its  final 

settlement 13 

The  re-marking  of  the   boundary  between  New  York  and  Canada,  and  pro 
posals  for  re-marking  the  entire  line  to  the  mouth  of  the  St.  Croix  River..         20 
Arrangements  for  marking  and  mapping  the  boundary  between  the  States 
of  Vermont,  New  Hampshire,  and  Maine,  on  the  one  side,  and  Canada,  on 
the   other 25 

PART  II. 

The  boimdary  from  the  intersection  of  the  forty-fifth  parallel  and  the  St. 
Lawrence  River  to  the  Lake  of  the  Woods. 

The  portion  of  this  line  included  in  Article  VI  of  the  Treaty  of  1814 31 

The  line  from  the  foot  of  Neebish  Rapids  to  the  most  northwestern  point  of 

the  Lake  of  the  Woods,  included  in  Article  VII  of  the  Treaty  of  1814 35 

The  settlement  of  this  boundary  by  the  Webster-Ashburton  Treaty  of  1842...  40 

Separate  survey  by  Canada,  1896 45 

Free  and  open  navigation  of  cerain  portions  of  the  boundary  waters  provided 

for  in  the  Treaty  of  1842 47 

Boundary  channels  apparently  can   not  be  dredged   by  either  Govern 
ment  without  the  consent  of  the  other 48 

Cession  of  Horse-Shoe  Reef  in  1850  by  Great  Britain  to  the  United  States 50 

The  location  of  the  boundary  with  respect  to  two  islands  in  Lac  la  Croix 

and  an  island  in  the  Lake  of  the  Woods 52 

Proposals  for  the  more  complete  definition  and  marking  of  the  entire  bound 
ary  from  the  St.  Lawrence  at  the  forty-fifth  parallel  to  the  northwest  angle 

of  the  Lake  of  the  Woods,  by  joint  action  of  the  two  Governments 55 

Negotiations  by  the  Joint  High  Commission  in  1898-99 58 

Later  negotiations 59 

The  line  as  shown  on  the  original  treaty  maps  reproduced  on  modern  charts.  61 

III 


PART  III. 

The  northivestern  boundary,  from  the  northwesternmost  point  of  the  Lake 
of  the  Woods  to  the  Pacific  Ocean. 

Page. 

Boundary  east  of  the  Rocky  Mountains 65 

Boundary  west  of  the  Rocky  Mountains  to  the  coast 67 

Demarcation  of  the  land  boundary  west  of  the  Rocky  Mountains 68 

The  boundary  marks  and  monuments 70 

The  water  boundary  from  the  forty-ninth  parallel  of  north  latitude  where  it 

strikes  the  Gulf  of  Georgia  to  the  Pacific  Ocean 75 

Surveying  and   marking  the   boundary  from   the  Lake  of  the  Woods  to  the 

Rocky  Mountains 77 

Subsequent  negotiations  and  arrangements  for  re-marking  the  line  from  the 

Lake  of  the  Woods  to  the  Pacific  Ocean 79 

West  of  the  Rocky  Mountains 79 

East  of  the  Rocky  Mountains 82 

Several  small  sections  of  United  States  territory  separated  from  the  United 
States  by  the  boundary  as  laid  down  at  the  northwest  angle  of  the  Lake  of 
the  Woods 83 

IV 


PART   I. 


THE  NORTHEASTERN  BOUNDARY. 


THE  NORTHEASTERN  BOUNDARY. 


THE  BOUNDARY  THROUGH  PASSAMAQUODDY  BAY. 

The  international  boundary  through  Passamaquoddy  Bay  is 
defined  by  the  following  treaty  provisions: 

In  Article  II  of  the  Provisional  Treaty  of  1782  and  in  Article  II 
of  the  Treaty  of  Peace  of  1783  the  boundary  line  is  carried  down 
the  middle  of  the  St.  Croix  River  to  its  mouth,  and  from  that  point 
to  the  Atlantic  its  course  is  left  to  be  determined  under  the  general 
provision  which  refers  to  the  boundaries  of  the  United  States  as— 

"Comprehending  all  islands  within  twenty  leagues  of  any  part 
of  the  shores  of  the  United  States,  and  lying  between  lines  to  be 
drawn  due  east  from  the  points  where  the  aforesaid  boundaries  be 
tween  Nova  Scotia  on  the  one  part,  and  East  Florida  on  the  other, 
shall  respectively  touch  the  Bay  of  Fundy  and  the  Atlantic  Ocean; 
excepting  such  islands  as  now  are,  or  heretofore  have  been,  within 
the  limits  of  the  said  province  of  Nova  Scotia." 

It  will  be  observed  that  this  provision  gives  no  description  of  the 
course  of  the  boundary  line  from  the  mouth  of  the  St.  Croix  River 
to  the  sea.  Apparently,  the  intention  was  that  the  line  should  be  a 
water  line  passing  among  the  islands  so  as  to  leave,  if  possible,  all 
of  the  British  islands  on  one  side  and  the  American  islands  on  the 
other.  The  location  of  the  line,  therefore,  depended  upon  the 
nationality  of  the  several  islands  in  the  bay,  many  of  which  were 
claimed  by  both  Governments.  The  situation  was  further  compli 
cated  by  the  fact  that  the  identity  of  the  River  St.  Croix  was  in 
dispute. 

This  feature  of  the  question  was  settled  by  the  Commissioners 
appointed  under  the  provisions  of  Article  V  of  the  Treaty  of  1794  to 
"decide  what  river  is  the  River  St.  Croix  intended  by  the  treaty." 
The  Commissioners  determined  upon  the  river  now  known  as  the 
St.  Croix,  which  constitutes  a  portion  of  the  present  boundary. 

The  efforts  made  by  the  two  Governments  to  settle  the  owner 
ship  of  the  disputed  islands  in  the  bay  resulted  in  the  negotiation  in 
1803  and  again  in  1807  of  treaties  fixing  the  line,  but  in  each  case 
the  treaty  failed  of  ratification. 

The  treaty  negotiated  in  1803  by  Rufus  King,  on  the  part  of  the 
United  States,  and  the  Right  Honorable  Robert  Banks  Jenkinson 


(commonly  called  Lord  Hawkesbury),  on  the  part  of  Great  Britain, 
was  amended  by  the  Senate  by  striking  out  Article  V,  relating  to 
the  boundary  west  of  the  Lake  of  the  Woods,  and  ratifications  were 
not  exchanged  in  consequence. 

This  treaty  provided  for  the  boundary  in  Passamaquoddy  Bay  as 
follows: 

"ARTICLE  i.  The  line  hereinafter  described  shall  and  hereby  is 
declared  to  be  the  Boundary  between  the  Mouth  of  the  River  St. 
Croix  and  the  Bay  of  Fundy,  that  is  to  say,  a  line  beginning  in  the 
middle  of  the  Channel  of  the  River  St.  Croix  at  its  Mouth  (as  the 
same  has  been  ascertained  by  the  Commissioners  appointed  for  that 
Purpose)  thence  through  the  middle  of  the  Channel  between  Deer 
Island  on  the  East  and  North,  and  Moose  Island  and  Campo-Bello 
Island  on  the  West  and  South,  and  round  the  Eastern  Point  of 
Campo-Bello  Island  to  the  Bay  of  Fundy.  And  the  Islands  and 
Waters  northward  and  eastward  of  the  said  Boundary  together  with 
the  Island  of  Campo-Bello  situate  to  the  southward  thereof  are 
hereby  declared  to  be  within  the  Jurisdiction,  and  part  of  His  Maj 
esty's  Province  of  New  Brunswick;  and  the  Islands  and  Waters 
southward  and  westward  of  the  said  Boundary,  except  only  the 
Island  of  Campo-Bello,  are  hereby  declared  to  be  within  the  Juris 
diction,  and  Part  of  Massachusetts,  one  of  the  said  United  States." 

A  similar  attempt  was  made  by  Messrs.  Monroe  and  Pinkney  in 
1807,  but  their  treaty  failed  by  reason  of  other  causes.  (Moore's 
International  Law  Digest,  Vol.  V,  p.  717,  sec.  834,  Webster-Ashburton 
Treaty.)  This  treaty,  as  proposed  by  Messrs.  Monroe  and  Pinkney, 
was  inclosed  in  their  letter  of  April  25,  1807,  and  is  entitled:  "Addi 
tional  and  explanatory  articles,  signed  the day  of ,  1807, 

to  be  added  to  the  treaty  of  amity,  commerce,  and  navigation  be 
tween  His  Britannic  Majesty  and  the  United  States  of  America, 
signed  at  London,  the  3ist  day  of  December,  1806."  The  provision 
relating  to  the  line  through  Passamaquoddy  Bay  is  as  follows: 

"ARTICLE  i.  The  line  hereinafter  described  shall,  and  is  hereby 
declared  to  be,  the  boundary  between  the  mouth  of  the  river  St. 
Croix  and  the  Bay  of  Fundy;  that  is  to  say,  a  line  beginning  in  the 
middle  of  the  channel  of  the  river  St.  Croix,  at  its  mouth,  as  the  same 
has  been  ascertained  by  the  commissioners  appointed  for  that  pur 
pose;  thence  through  the  middle  of  the.  channel,  between  Deer 
Island,  Marvel  island,  and  Campo  Bello  island  on  the  east,  and 
Moose  island,  Dudley  island,  and  Frederick  island  on  the  west;  and 
round  the  south  point  of  Campo  Bello  island  to  the  Bay  of  Fundy; 
and  the  islands  and  waters  eastward  of  the  said  boundary  are  hereby 
declared  to  be  within  the  jurisdiction  and  part  of  His  Majesty's 
province  of  New  Brunswick,  and  the  islands  and  waters  westward 
of  the  said  boundary  are  declared  to  be  within  the  jurisdiction  and 
part  of  Massachusetts,  one  of  the  said  United  States;  notwithstand 
ing  which,  a  full  and  entire  right  of  navigation  is  reserved  to  the 
United  States  in  the  channel  between  Deer  island  on  the  east  and 


north,  and  Moose  island  and  Campo  Bello  island  on  the  west  and 
south,  and  round  the  east  point  of  Campo  Bello  island  into  the  Bay 
of  Fundy;  the  aforesaid  channel  frequently  affording  the  only  con 
venient  and  practicable  navigation."  (See  American  State  Papers, 
vol.  3;  Foreign  Relations,  pp.  162-164.) 

After  the  war  of  1812,  during  which  the  British  had  seized  most 
of  the  islands  in  the  bay,  it  was  stipulated  in  the  Treaty  of  Peace 
signed  at  Ghent  in  1814  that  all  possessions  taken  during  the  war 
should  be  restored,  and  it  was  specially  provided  that  such  of  the 
islands  in  Passamaquoddy  Bay  as  were  claimed  by  both  parties 
should  be  held  by  the  party  in  occupation  without  prejudice  to  the 
rights  of  the  other  party,  however,  until  the  question  of  title  should 
be  settled.  It  was  further  agreed  that  the  question  of  title  should  be 
determined  in  accordance  with  the  rights  of  the  parties  as  they  were 
established  at  and  prior  to  the  making  of  the  Treaty  of  Peace  of 
1783- 

These  provisions  will  be  found  in  Article  I  and  Article  IV  of 
the  Treaty  of  Ghent.  Under  the  latter  article  Commissioners  were 
appointed — 

"  to  decide  to  which  of  the  two  contracting  parties  the  several  islands 
aforesaid  do  respectively  belong,  in  conformity  with  the  true  intent  of 
the  said  Treaty  of  Peace  of  One  thousand  seven  hundred  and  eighty- 
three"; 

which  decision,  if  rendered  jointly  by  the  Commissioners,  was  to  be 
considered  final  and  conclusive  on  both  parties. 

The  British  claim  was  urged  before  the  Commissioners  on  the 
ground  that  the  islands  in  dispute  had  been  part  of  the  Province  of 
Nova  Scotia  in  and  before  the  year  1 783,  which,  under  the  terms  of  the 
treaty,  would  give  them  to  Great  Britain.  The  claim  of  the  United 
States  was  based  on  the  ground  that  all  the  islands  in  Passama 
quoddy  Bay,  and  also  the  island  of  Grand  Menan,  were  within  20 
leagues  of  the  coast  of  the  United  States,  and  included  within  its 
boundaries,  under  the  provisions  of  Article  II  of  the  Treaty  of  1783, 
and  it  was  denied  that  they  ever  were  within  the  limits  of  the  Prov 
ince  of  Nova  Scotia. 

It  is  unnecessary  in  this  connection  to  go  into  the  arguments  or 
evidence  presented  before  the  Commission,  further  than  to  say  that 
neither  side  based  its  claim  of  title  exclusively  on  occupation,  juris 
diction,  or  possession,  but  both  sides  dealt  with  these  points  as  tend 
ing  to  interpret  the  charters  and  grants  offered  in  evidence,  and  to 
sustain  the  claim  of  title  arising  therefrom. 

The  Commissioners  agreed  upon  a  compromise  settlement,  and 
it  appears  that  their  decision  was  substantially  in  accord  with  the 


settlement  proposed  in  the  treaties  negotiated  in  1803  and  1807,  by 
which  it  may  fairly  be  assumed  they  were  largely  influenced. 

The  decision  of  the  Commissioners,  dated  November  24,  1817, 
decided — 

"That  Moose  Island,  Dudley  Island,  and  Frederick  Island,  in  the 
Bay  of  Passamaquoddy,  which  is  part  of  the  Bay  of  Fundy,  do  and 
each  of  them  does  belong  to  the  United  States  of  America;  and  we 
have  also  decided  and  do  decide  that  all  the  other  islands,  and  each 
and  every  of  them  in  the  said  Bay  of  Passamaquoddy,  which  is  part 
of  the  Bay  of  Fundy,  and  the  island  of  Grand  Menan  in  the  said 
Bay  of  Fundy,  do  belong  to  his  said  Britannic  Majesty  in  con 
formity  with  the  true  intent  of  the  said  second  article  of  the  said 
Treaty  of  1783." 

Unfortunately,  the  Commissioners  were  not  required  to  lay  down 
on  charts  the  line  through  the  bay,  and  their  decision  left  the  exact 
location  of  the  line  still  in  a  somewhat  unsettled  condition.  Taking 
the  language  of  the  decision  literally  the  United  States  was  not 
entitled  to  any  of  the  islands  in  the  bay  except  the  three  named  in 
the  decision.  A  glance  at  the  chart  will  show  that  there  are  a  number 
of  small  islands  between  these  three  named  islands  and  the  American 
shore,  all  of  which  would  have  gone  to  Great  Britain  under  a  literal 
interpretation  of  the  decision. 

A  more  intelligent  interpretation  was  adopted,  however,  and  by 
common  consent  the  decision  was  regarded  as  applying  only  to  the 
islands  in  the  bay  which  prior  to  1783  had  been  claimed  as  part  of 
Nova  Scotia  by  Great  Britain.  The  effect  of  this  decision  thus 
interpreted  was  to  finally  settle  the  question  of  the  title  with  respect 
to  all  the  islands  in  the  bay,  with  the  exception  of  one  small  island 
known  as  "  Pope's  Folly,"  less  than  one-half  an  acre  in  size  and  lying 
between  Frederick  Island  (American)  and  Campobello  (British),  and 
nearer  by  one-half  to  Campobello  than  to  Frederick.  This  question 
is  still  unsettled  and  is  the  main  and  practically  the  only  reason  for 
the  delay  in  fixing  the  boundary,  for  it  so  happens  that  this  island  lies 
immediately  in  the  natural  course  of  the  boundary  line  through  the 
bay,  and  it  is  at  this  point  only  that  there  has  been  any  serious  dis 
pute  as  to  the  location  of  the  line.  The  positions  taken  by  each 
side  on  the  several  occasions  when  the  question  has  been  under 
discussion  are  briefly  as  follows: 

According  to  the  American  view  this  island,  under  the  interpreta 
tion  given  the  decision  in  its  application  to  the  other  small  unnamed 
islands  in  the  bay,  should  have  been  assigned  to  the  United  States, 
and  the  facts,  so  far  as  they  are  now  ascertainable,  seem  to  support 
this  view.  The  United  States  has  also  contended  throughout  the 
dispute  that  a  controlling  reason  for  leaving  the  island  on  the  Ameri 
can  side  is  found  in  the  fact  that  the  main  ship  channel  at  this  point 


7 

passes  on  the  British  side  of  the  island,  through  which  channel  the 
boundary  line  naturally  should  run. 

On  the  ether  hand,  Great  Britain  has  always  insisted  upon  a 
strict  interpretation  of  the  Commissioners'  decision  in  its  application 
to  this  island,  and  as  a  further  ground  has  urged  that  the  argument 
based  on  the  location  of  the  main  ship  channel  has  no  force,  in  view 
of  the  fact  that  another,  though  less  convenient,  channel  is  found  on 
the  American  side  of  the  i-sland  which  the  boundary  could  follow, 
and  that  under  the  circumstances  the  island  must  be  regarded  as  an 
appendage  of  the  nearest  larger  island,  which  is  Campobello,  not 
withstanding  the  fact  that  the  main  ship  channel  passes  between. 

An  attempt  was  made  to  settle  this  question  under  the  Conven 
tion  of  July  22,  1892,  by  which  two  Commissioners  were  appointed 
jointly — 

"to  determine  upon  a  method  of  more  accurately  marking  the 
boundary  line  between  the  two  countries  in  the  waters  of  Passama- 
quoddy  Bay  in  front  of  and  adjacent  to  Eastport,  in  the  State  of 
Maine,  and  to  place  buoys  or  fix  such  other  boundary  marks  as  they 
may  determine  to  be  necessary." 

No  joint  report  was  made  by  these  Commissioners.  It  appears 
from  the  separate  report  made  by  the  Commissioner  for  the  United 
States,  however,  that  they  came  to  a  substantial  agreement  and  sur 
veyed  and  charted  the  line  and  were  prepared  to  recommend  the 
acceptance  of  the  line  as  agreed  upon,  with  the  exception  of  two 
parts  of  it  about  which  they  were  unable  to  agree.  One  of  these 
parts  was  where  the  line  passes  this  island  known  as  '  *  Pope's  Folly, " 
the  title  to  which,  for  the  reasons  above  discussed,  was  left  in  some 
doubt  under  the  decision  rendered  by  the  Commissioners  under  the 
fourth  article  of  the  Treaty  of  Ghent. 

The  other  part  was  just  below  Lubec  Narrows.  At  this  point 
the  United  States  had  dredged  a  new  channel  to  the  west  of,  and 
consequently  on  its  own  side  of,  the  old  channel,  which,  on  account 
of  the  diversion  of  the  current  through  the  dredged  channel,  had 
filled  up  and  was  no  longer  used  as  the  channel.  The  British  Com 
missioner  claimed  that  the  line  should  be  carried  through  the  new 
dredged  channel.  To  this  there  was  no  particular  objection,  except 
for  the  fact  that  by  so  doing  some  fish  weirs  located  between  the 
two  channels,  and  owned  and  operated  for  many  years  past  by 
American  fishermen,  would  be  left  on  the  Canadian  side  of  the 
boundary. 

The  questions  of  jurisdiction  and  ownership  prior  to  the  year 
1783  are  fully  stated  and  argued  in  a  decision  by  Judge  Ware,  ren 
dered  in  the  United  States  District  Court  in  the  State  of  Maine  in 
1823  (Ware's  Reports,  Vol.  I,  p.  18)  in  the  case  of  "An  Open  Boat 


8 

and  Cargo  and  Three  Puncheons  of  Rum — Ricker,  Claimant."  In 
that  case  it  was  held  that  this  island  at  that  time  was  within  the 
limits  of  the  State  of  Maine.  The  other  questions  outlined  above 
are  fully  discussed  in  the  report  of  the  Commissioner  on  the  part  of 
the  United  States  under  the  Treaty  of  1892.  A  copy  of  this  report 
and  of  Judge  Ware's  opinion  will  be  found  in  the  pamphlet  prepared 
for  the  information  of  the  United  States  Commissioners  of  the  Joint 
High  Commission. 

An  attempt  was  made  by  the  Joint  High  Commission  in  1898  to 
harmonize  these  differences  without  going  into  all  the  details  neces 
sary  for  a  decision  on  a  strictly  legal  basis,  and  it  was  proposed  that 
a  compromise  line  running  as  nearly  straight  as  possible  should  be 
adopted.  It  appeared  that  this  could  be  accomplished  by  carrying 
the  line  through  the  new  dredged  channel  below  Lubec  Narrows, 
in  accordance  with  Great  Britain's  contention,  and  through  the  main 
channel  to  the  east  of  Pope's  Folly,  in  accordance  with  the  United 
States'  contention,  and  the  Commissioners  considered  this  proposi 
tion,  but  no  agreement  was  arrived  at.  This  settlement  would  have 
the  elements  of  a  compromise  by  mutual  concession,  because, 
although  the  United  States  would  get  the  island,  the  fishing  grounds 
and  fish  weirs  now  claimed  by  the  United  States  to  the  east  of  the 
dredged  channel  would  go  to  Great  Britain.  If  the  question  is  to 
be  adjusted  by  compromise  this  would  seem  to  be  a  fair  basis  of 
settlement. 

If,  however,  the  question  is  not  to  be  adjusted  by  compromise 
its  settlement  will  depend  upon  the  determination  of  the  ownership 
of  this  island,  and  whether  the  line  should  be  carried  through  the 
natural  channel  or  the  dredged  channel,  under  a  strict  application 
of  the  recognized  rules  of  international  law.  It  is  possible  that  at  this 
late  date  it  will  be  difficult  to  obtain  the  exact  facts  with  respect  to 
the  ownership  of  the  island  in  dispute  prior  to  1783,  upon  which  the 
decision  of  that  question  largely  depends. 

In  either  case,  whether  the  question  be  settled  by  compromise  or 
by  determination  of  the  strict  rights  of  the  parties,  an  agreement  by 
convention  will  be  necessary  for  its  final  adjustment,  and  in  such 
agreement  the  location  of  the  line,  so  far  as  agreed  upon  by  the 
Commissioners  under  the  Convention  of  1892,  might  safely  be 
adopted. 

FROM  THE  MOUTH  OF  THE  ST.  CROIX  RIVER  TO  THE  ST.  LAWRENCE 

RIVER. 

This  portion  of  the  boundary  as  originally  described  in  the  pro 
visional  peace  articles  of  1782,  and  repeated  in  Article  II  of  the 
Definitive  Treaty  of  Peace  of  1783,  is  divided  into  a  northern  and 


an  eastern  boundary.      The  boundary  on  the  north   is  described  as 
follows: 

"From  the  northwest  angle  of  Nova  Scotia,  viz,  that  angle 
which  is  formed  by  a  line  drawn  due  north  from  the  source  of  Saint 
Croix  River  to  the  Highlands;  along  the  said  Highlands  which 
divide  those  rivers  that  empty  themselves  into  the  river  St.  Law 
rence,  from  those  which  fall  into  the  Atlantic  Ocean,  to  the  north- 
westernmost  head  of  Connecticut  River;  thence  down  along  the 
middle  of  that  river,  to  the  forty-fifth  degree  of  north  latitude;  from 
thence,  by  a  line  due  west  on  said  latitude,  until  it  strikes  the  river 
Iroquois  or  Cataraquy. " 

The  boundary  on  the  east  is  described  as  follows: 

"East,  by  a  line  to  be  drawn  along  the  middle  of  the  river  St. 
Croix,  from  its  mouth  in  the  Bay  of  Fundy  to  its  source,  and  from 
its  source  directly  north  to  the  aforesaid  Highlands,  which  divide 
the  rivers  that  fall  into  the  Atlantic  Ocean  from  those  which  fall 
into  the  river  St.  Lawrence." 

Unfortunately,  no  map  showing  the  location  of  the  boundary  line 
as  agreed  upon  was  annexed  to  these  treaties,  and  the  line  was  not 
even  marked  on  any  maps  mutually  accepted  by  the  negotiators. 
This  was  doubtless  due  to  the  fact  that  most  of  the  region  through 
which  the  line  was  to  run  had  never  been  surveyed,  so  that  very 
little  was  known  about  it  and  the  existing  maps  were  understood  to 
be  inaccurate.  The  exact  location  of  the  boundary,  therefore,  was 
left  to  be  determined  by  applying  the  general  description  of  the 
boundary  as  defined  in  the  treaty  to  the  topographical  conditions  as 
afterwards  ascertained. 

When  this  came  to  be  done  it  was  found  that  the  conditions 
assumed  by  the  treaty  description  as  existing  were  in  many  respects 
inaccurately  stated,  and  disputes  arose  as  to  the  location  of  this  por 
tion  of  the  line  throughout  almost  its  entire  length.  As  stated  by 
President  Jefferson  in  his  annual  message  of  October  17,  1803: 

"A  further  knowledge  of  the  ground  in  the  northeastern  and 
northwestern  angles  of  the  United  States  has  evinced  that  the  boun 
daries  established  by  the  Treaty  of  Paris  between  the  British  terri 
tories  and  ours  in  those  parts  were  too  imperfectly  described  to  be 
susceptible  of  execution. "  (Richardson's  Messages  and  Papers  of  the 
Presidents,  Vol.  I,  p.  359.) 

The  first  dispute  to  be  taken  up  for  settlement  was  the  iden 
tity  of  the  River  St.  Croix  named  in  the  treaty,  and  Commissioners 
were  appointed  under  Article  V  of  the  Treaty  of  1794  "to  decide 
what  river  is  the  River  St.  Croix  intended  by  the  treaty."  It  is  not 
necessary  at  this  time  and  in  the  present  connection  to  review  the 
proceedings  before  these  Commissioners  and  the  arguments  upon 


10 

which  their  decision  was  based.  A  full  history  of  the  proceedings 
and  the  controversy  will  be  found  in  Moore  on  International  Arbi 
trations,  volume  i,  pages  1-143. 

The  Commissioners  agreed  upon  the  river  now  known  as  the  St. 
Croix,  and  on  October  25,  1798,  rendered  their  decision  so  declaring 
and  describing  with  particularity  the  course  of  this  river  to  its  source. 
Maps  in  duplicate  surveyed  under  the  direction  of  the  Commission 
ers,  showing  the  river  thus  identified  as  the  St.  Croix,  were  signed 
by  the  Commissioners  and  filed  with  their  decision. 

It  will  be  noted  that  Article  V  of  the  Treaty  of  1794,  above 
referred  to,  required  the  Commissioners  to  particularize  the  latitude 
and  longitude  of  the  mouth  and  of  the  source  of  the  river.  Owing 
to  the  delays  in  the  field  work,  however,  difficulties  arose  in  executing 
this  requirement,  and  in  1798  "an  explanatory  article  to  the  Treaty 
of  November  19,  1794,"  was  concluded,  releasing  the  Commission 
ers  from  particularizing  the  latitude  and  longitude  of  the  source 
of  the  river,  and  agreeing  instead  that  they  might  describe  the  river 
"in  such  other  manner  as  they  may  judge  expedient,"  and  "that 
no  uncertainty  may  hereafter  exist  on  this  subject"  it  was  further 
agreed  that  the  two  Governments  should  concert  measures  "  to  erect 
and  keep  in  repair  a  suitable  monument  at  the  place  ascertained  and 
described  to  be  the  source  of  the  said  River  St.  Croix."  The  loca 
tion  of  the  source  of  the  River  St.  Croix  on  the  map  filed  by  the 
Commissioners  fulfilled  these  requirements  and  a  monument  was 
thereafter  erected  on  the  spot  indicated  as  the  source.  In  thus 
determining  the  identity  of  the  St.  Croix  and  locating  its  source  the 
location  of  that  portion  of  the  eastern  boundary  "to  be  drawn  along 
the  middle  of  the  St.  Croix  "  from  its  mouth  to  its  source  was  settled, 
and  at  the  same  time  the  starting  point  was  established  for  the  rest 
of  the  eastern  boundary,  which,  by  the  terms  of  the  treaty,  was  to 
be  drawn  from  the  source  of  that  river  directly  north  to  the  "high 
lands"  at  the  northwest  angle  of  Nova  Scotia. 

It  still  remained,  however,  to  determine  what  constituted  the 
"highlands"  and  "the  northwest  angle  of  Nova  Scotia"  referred  to 
in  the  treaty  description,  which  were  matters  in  dispute. 

By  reference  to  the  treaty  it  will  be  found  that  the  northwest 
angle  is  defined  as  "that  angle  which  is  formed  by  a  line  drawn  due 
north  from  the  source  of  the  St.  Croix  River  to  the  Highlands"  and 
the  "highlands"  were  referred  to  as  "the  said  Highlands  which 
divide  those  rivers  that  empty  themselves  into  the  River  St.  Law 
rence  from  those  which  fall  into  the  Atlantic  Ocean." 

It  is  evident  from  the  description  that  the  negotiators  of  the 
treaty,  in  defining  this  portion  of  the  boundary,  assumed  that  there 
was  a  well-defined  ridge  or  height  of  land  throughout  this  region 


1 1 

forming  a  watershed  between  the  St.  Lawrence  and  the  Atlantic. 
When  an  attempt  was  made  to  actually  locate  the  line,  however,  it 
was  found  that  no  such  well-defined  highlands  existed  at  a  point 
due  north  of  the  source  of  the  St.  Croix,  and  consequently  that  the 
location  of  the  northwest  angle  of  Nova  Scotia,  which  was  to  be 
formed  by  a  line  drawn  due  north  from  the  source  of  the  St.  Croix 
to  such  "highlands,"  could  not  be  accurately  determined  under  the 
treaty  description. 

This  defect  in  the  description  also  prevented  the  location  of  that 
portion  of  the  northern  line  starting  at  this  unlocated  angle,  from 
which  the  line  was  to  run  "along  the  said  Highlands  *  *  to 

the  northwesternmost  head  of  Connecticut  River." 

Difficulties  were  also  presented  in  locating  the  farther  end  of  this 
section  of  the  line  on  account  of  the  uncertainty  as  to  which  of  sev 
eral  branches  should  oe  taken  as  the  "northwesternmost  head  of 
Connecticut  River." 

Through  the  greater  part  of  the  region  between  these  two  points 
a  height  of  land  can  be  traced,  dividing  the  waters  flowing  into  the 
St.  Lawrence  from  those  flowing  into  the  Atlantic,  but  without  a 
starting  point  accurately  fixed  at  either  end  of  the  line  it  was  diffi 
cult  to  determine  the  exact  location  of  even  that  portion  of  the 
boundary.  The  boundary  described  in  the  Treaty  of  1783  was 
intended  to  conform  as  near  as  might  be  to  the  previously  estab 
lished  boundaries  along  the  southern  borders  of  the  Provinces  of 
Quebec  and  Nova  Scotia.  The  southern  boundary  of  Quebec  as 
then  established  ran  along  the  highlands  from  the  Bay  of  Chaleurs  to 
the  source  of  the  Connecticut  River,  but  this  height  of  land  was  not 
mutually  regarded  as  accurately  fulfilling  the  requirements  of  the 
treaty  description,  and  ultimately  the  boundary  through  this  entire 
region  became  involved  in  the  dispute. 

The  location  of  the  line  along  the  Connecticut  River  from  its 
"northwesternmost  head"  to  the  45th  degree  of  north  latitude  was 
also  dependent  upon  the  determination  of  which  of  the  several  heads 
should  be  taken  as  the  starting  point,  and  that,  as  above  stated,  was 
one  of  the  questions  in  dispute.  On  the  part  of  the  United  States 
it  was  claimed  that  the  most  westerly  branch,  known  as  "Hall's 
Stream,"  was  the  one  intended.  It,  appeared,  however,  that  this 
branch  did  not  join  the  main  river  until  it  had  passed  below  the 
45th  parallel,  and  therefore  if  this  branch  was  selected  a  line  along 
the  45th  parallel  would  not  strike  the  Connecticut  River  at  all.  For 
that  reason,  among  others,  it  was  urged  on  the  part  of  Great  Britain 
that  Hall's  Stream  should  be  rejected  and  a  more  easterly  branch 
selected,  joining  with  the  main  part  of  the  Connecticut  River  con 
siderably  farther  up. 


12 

From  the  Connecticut  River  at  the  45th  degree  of  north  latitude 
to  the  St.  Lawrence  the  description  of  the  boundary  was: 

*'  From  thence,  by  a  line  due  west  on  said  latitude,  until  it  strikes 
the  river  Iroquois  or  Cataraquy." 

This  section  of  the  line  was  certainly  described  with  sufficient 
accuracy  to  avoid  any  dispute  as  to  its  exact  location,  but  here  again 
difficulties  arose,  for  it  was  found  that  the  treaty  line  did  not  follow 
the  old  established  boundary  as  actually  laid  down  in  1774  between 
the  Provinces  of  New  York  and  Quebec,  which  boundary  the  nego 
tiators  of  the  treaty  had  intended  to  adopt,  and  ultimately,  by  com 
mon  consent,  the  treaty  description  was  abandoned  and  it  was  agreed 
that  the  line  should  conform  to  the  location  of  this  old  line. 

The  45th  parallel  had  been  fixed  along  this  portion  of  the  line  as 
the  boundary  between  the  Provinces  of  New  York  and  Quebec  by 
a  grant  from  James  I  in  1606,  and  again  by  royal  proclamation  in 
1763,  and  finally  it  was  confirmed  as  the  boundary  on  August  12, 
1768,  by  an  order  in  council. 

Between  the  years  1771  and  1774  this  portion  of  the  line  was  sur 
veyed  and  monumented  and  thereafter  was  known  as  the  "Valen 
tine  and  Collins  line,"  from  the  names  of  the  surveyors  surveying  it. 
Their  survey  was  intended  to  lay  the  line  along  the  45th  parallel, 
and  it  was  supposed  that  this  had  been  accomplished,  and  the  line  as 
laid  out  was  accepted  and  vested  interests  on  each  side  had  been 
acquired  in  reliance  upon  it,  and  at  the  time  of  the  Treaty  of  Peace 
it  was  established  in  full  force. 

No  question  seems  to  have  arisen  with  respect  to  the  accuracy  of 
its  location  until  1818,  when  in  the  autumn  of  that  year  the  British 
and  American  surveyors,  acting  under  the  Commission  appointed  by 
the  Treaty  of  Ghent  for  the  settlement  of  this  boundary,  discovered 
that  at  the  Connecticut  River,  and  also  at  Lake  Champlain,  the  true 
parallel  lay  about  three-fourths  of  a  mile  south  of  the  old  line.  At 
Rouses  Point  in  Lake  Champlain,  which  was  only  about  one-fourth 
of  a  mile  south  of  the  old  line  and  therefore  north  of  the  true  parallel, 
the  United  States  had  at  that  time  constructed  a  fort  at  a  cost  of 
about  a  million  dollars,  which  would  be  thrown  into  Canadian  terri 
tory  if  the  old  line  was  abandoned  as  the  boundary  and  the  45th 
parallel  established  instead. 

At  other  points  also  the  old  line  varied  considerably  both  to  the 
north  and  south  of  the  45th  parallel,  although  it  was  found  to  coin 
cide  with  it  at  the  St.  Lawrence  River.  The  difficulties  occasioned 
by  the  location  of  this  line  were  finally  settled  by  the  Webster- 
Ashburton  Treaty  of  1842,  which  adopted  the  old  Valentine  and 
Collins  line,  as  appears  below. 


13 

Such,  in  brief,  were  the  chief  points  of  dispute  along  this  portion 
of  the  boundary  from  the  St.  Croix  to  the  St.  Lawrence,  which  de 
veloped  into  the  controversy  known  as  the  "Northeastern  Boundary 
Question." 

NEGOTIATIONS  CONCERNING   THE   NOTHEASTERN    BOUNDARY 
QUESTION  AND  ITS  FINAL  SETTLEMENT. 

A  treaty  was  concluded  in  1803  providing  for  the  settlement  of 
this  question,  but  nothing  came  of  it,  because  before  it  could  be 
acted  upon  by  the  Senate  the  cession  of  Louisiana  was  confirmed, 
making  it  necessary  to  change  the  description  of  the  northwestern 
boundary,  which  was  dealt  with  in  one  of  the  articles  of  this  treaty. 
The  Senate  advised  that  the  treaty  be  ratified,  omitting  the  article 
affected  by  the  Louisiana  cession,  but  Great  Britain  refused  to  assent 
to  the  treaty  so  amended. 

A  further  attempt  was  made  in  1807  to  arrange  for  the  settlement 
of  this  question  by  treaty,  which  failed  for  reasons  arising  from 
outside  questions.  (For  details  of  these  negotiations  see  Moore  on 
International  Arbitrations,  vol.  i,  pp.  68,  69,  and  authorities  there 
cited.) 

From  that  time  on  the  situation  with  respect  to  the  boundary 
question  remained  unchanged  until  after  the  war  of  1812,  when  pro 
vision  was  made  in  the  Treaty  of  Peace  signed  at  Ghent  in  1814  for 
the  appointment  of  Commissioners  to  locate  the  "highlands"  and 
the  line  "along  said  Highlands  referred  to,"  and  the  "northwestern- 
most  point  of  the  Connecticut  River,"  and  to  survey  and  lay  out  the 
line  as  described  in  the  treaty.  The  exact  questions  to  be  deter 
mined  by  these  Commissioners  are  set  out  in  Article  V  of  the  Treaty 
of  Ghent,  under  which  they  were  appointed,  which  recites  that — 

"  Neither  that  point  of  the  highlands  lying  due  north  from  the 
source  of  the  river  St.  Croix,  and  designated  in  the  former  treaty  of 
peace  between  the  two  Powers  as  the  northwest  angle  of  Nova  Sco 
tia,  nor  the  northwesternmost  head  of  Connecticut  River,  has  yet 

been  ascertained;" 

And— 

"That  part  of  the  boundary  line  *  *  *  which  extends  from 
the  source  of  the  river  St.  Croix  directly  north  to  the  abovementioned 
northwest  angle  of  Nova  Scotia,  thence  along  the  said  highlands 
which  divide  those  rivers  that  empty  themselves  into  the  river  St. 
Lawrence  from  those  which  fall  into  the  Atlantic  Ocean  to  the  north- 
westernmost  head  of  Connecticut  River,  thence  down  along  the  mid 
dle  of  that  river  to  the  forty-fifth  degree  of  north  latitude;  thence 
by  a  line  due  west  on  said  latitude  until  it  strikes  the  river  Iroquois 
or  Cataraquy,  has  not  yet  been  surveyed." 


14 

It  will  be  observed  that  a  distinction  is  here  made  between  the 
points  of  the  line  the  locations  of  which  had  not  been  ascertained 
and  the  portions  which  had  not  been  surveyed,  and  in  the  latter 
class  the  line  between  the  Connecticut  River  and  the  St.  Lawrence 
was  included.  The  fact  that  the  old  Valentine  and  Collins  line  did 
not  coincide  with  the  45th  parallel  was  discovered  for  the  first  time 
by  the  Commissioners  appointed  under  this  article,  and  subsequently 
when  the  adjustment  of  that  question  came  up  for  settlement  this 
recital  in  this  article,  that  that  particular  portion  of  the  line  had  not 
been  surveyed,  was  a  matter  of  some  embarrassment  to  the  United 
States. 

The  Commissioners  appointed  under  this  article  met  in  Septem 
ber,  1816,  and  surveys  were  made  under  their  direction.  The  differ 
ences  between  them,  however,  were  found  to  be  insurmountable 
and  they  finally  came  to  a  total  disagreement  on  all  points  and  made 
separate  reports  to  that  effect  to  thei^  Governments  on  October  4, 
1821. 

The  reports  of  these  Commissioners  and  a  detailed  review  of 
their  proceedings  and  the  positions  taken  by  each  Government  on 
the  several  questions  involved  will  be  found  in  volume  i  of  Moore 
on  International  Arbitrations,  chapter  3,  pages  65-83. 

After  the  failure  of  the  Commissioners  under  Article  V  of  the 
Treaty  of  1814  to  agree,  it  was  decided  to  resort  to  arbitration,  and 
accordingly,  under  the  Treaty  of  1827,  the  settlement  of  this  question 
was  submitted  to  the  decision  of  the  King  of  the  Netherlands.  His 
award,  given  on  January  10,  1831,  avoided  a  direct  decision  of  the 
questions  submitted  by  proposing  instead  a  compromise  line,  which 
was  not  satisfactory  to  either  party  and  was  rejected  by  both. 

A  review  of  the  proceedings  and  the  arguments  advanced  on  each 
side  in  this  arbitration  will  be  found  in  volume  i  of  Moore  on  Inter 
national  Arbitrations,  chapter  4,  pages  85-146. 

In  rejecting  this  award  the  Senate  in  1832  recommended  that 
the  President  open  a  new  negotiation  with  Great  Britain  for  the 
ascertainment  of  the  line.  Further  negotiations  were  therefore  un 
dertaken  and  additional  surveys  were  made,  but  no  agreement  was 
arrived  at  until  the  Treaty  of  1842,  by  Article  I  of  which  this  portion 
of  the  line  was  agreed  to  and  defined  as  follows: 

"Beginning  at  the  monument  at  the  source  of  the  river  St.  Croix 
as  designated  and  agreed  to  by  the  Commissioners  under  the  fifth 
article  of  the  treaty  of  1794,  between  the  Governments  of  the  United 
States  and  Great  Britain  ;  thence,  north,  following  the  exploring  line 
run  and  marked  by  the  surveyors  of  the  two  Governments  in  the 
years  1817  and  1818,  under  the  fifth  article  of  the  treaty  of  Ghent, 
to  its  intersection  with  the  river  St.  John,  and  to  the  middle  of  the 


channel  thereof;  thence,  up  the  middle  of  the  main  channel  of  the 
said  river  St.  John,  to  the  mouth  of  the  river  St.  Francis;  thence, 
up  the  middle  of  the  channel  of  the  said  river  St.  Francis,  and  of 
the  lakes  through  which  it  flows,  to  the  outlet  of  the  Lake  Pohe- 
nagamook;  thence,  southwesterly,  in  a  straight  line,  to  a  "point  on 
the  northwest  branch  of  the  river  St.  John,  which  point  shall  be  ten 
miles  distant  from  the  main  branch  of  the  St.  John,  in  a  straight  line, 
and  in  the  nearest  direction;  but  if  the  said  point  shall  be  found  to 
be  less  than  seven  miles  from  the  nearest  point  of  the  summit  or 
crest  of  the  highlands  that  divide  those  rivers  which  empty  them 
selves  into  the  river  Saint  Lawrence  from  those  which  fall  into  the 
river  Saint  John,  then  the  said  point  shall  be  made  to  recede  down 
the  said  northwest  branch  of  the  river  St.  John,  to  a  point  seven 
miles  in  a  straight  line  from  the  said  summit  or  crest;  thence,  in  a 
straight  line,  in  a  course  about  south,  eight  degrees  west,  to  the  point 
where  the  parallel  of  latitude  of  46°  25'  north  intersects  the  south 
west  branch  of  the  St.  John's;  thence,  southerly,  by  the  said  branch, 
to  the  source  thereof  in  the  highlands  at  the  Metjarmette  portage; 
thence,  down  along  the  said  highlands  which  divide  the  waters  which 
empty  themselves  into  the  river  Saint  Lawrence  from  those  which  fall 
into  the  Atlantic  Ocean,  to  the  head  of  Hall's  Stream  ;  thence,  down 
the  middle  of  said  stream,  till  the  line  thus  run  intersects  the  old  line 
of  boundary  surveyed  and  marked  by  Valentine  and  Collins,  pre 
viously  to  the  year  1774,  as  the  45th  degree  of  north  latitude,  and 
which  has  been  known  and  understood  to  be  the  line  of  actual 
division  between  the  States  of  New  York  and  Vermont  on  one  side, 
and  the  British  province  of  Canada  on  the  other;  and  from  said 
point  of  intersection,  west,  along  the  said  dividing  line,  as  heretofore 
known  and  understood,  to  the  Iroquois  or  St.  Lawrence  River." 

In  this  description  of  the  boundary  as  agreed  upon  in  this  treaty 
it  will  be  observed  that  in  the  absence  of  "highlands"  north  of  the 
source  of  the  St.  Croix  River  the  line  there  runs  north  only  to 
the  center  of  the  St.  John  River.  From  this  point  it  follows  along 
that  river  and  around  through  certain  of  its  tributary  branches  until 
it  reaches  the  source  of  its  southwest  branch.  From  that  point  the 
description  in  the  original  treaty  is  followed  to  some  extent  and 
the  line  runs  along  the  "highlands"  "  which  divide  the  waters  which 
empty  themselves  into  the  St.  Lawrence  River  from  those  which 
fall  into  the  Atlantic  Ocean"  to  the  head  of  Hall's  Stream,  which  is 
the  branch  of  the  Connecticut  urged  from  the  outset  on  the  part  of 
the  United  States  as  the  northwesternmost  head  of  that  river  intended 
by  the  treaty.  From  there  it  runs  down  the  middle  of  the  stream 
until  it  intersects  the  Valentine  and  Collins  line,  which  is  referred  to 
as  "known  and  understood-to  be  the  line  of  actual  division  between 
the  States  of  New  York  and  Vermont  on  one  side  and  the  British 
province  of  Canada  on  the  other,"  and  from  that  point  it  follows 
that  line  to  the  St.  Lawrence  River. 

A  review  of  the  negotiations  up  to  this  point  will  be  found  in 


i6 

Webster's  speech  in  the  Senate,  April  6  and  7,  1846,  and  the  docu 
ments  referred  to,  which  are  printed  in  the  Appendix  to  the  Con 
gressional  Globe,  first  session,  Twenty-ninth  Congress,  pages  524— 
537.  See  also  Moore  on  International  Arbitrations,  volume  i,  pages 
147-161. 

This  treaty  was  submitted  to  the  Senate  by  President  Tyler  on 
August  u,  1842.  In  his  message  of  that  date  accompanying  the 
treaty  the  settlement  of  the  boundary  questions  under  the  treaty 
provisions  is  referred  to  as  follows: 

"Connected  with  the  settlement  of  the  line  of  the  northeastern 
boundary,  so  far  as  it  respects  the  States  of  Maine  and  Massachusetts, 
is  the  continuation  of  that  line  along  the  highlands  to  the  northwest- 
ernmost  head  of  Connecticut  River.  Which  of  the  sources  of  that 
stream  is  entitled  to  this  character  has  been  matter  of  controversy  and 
of  some  interest  to  the  State  of  New  Hampshire.  The  King  of  the 
Netherlands  decided  the  main  branch  to  be  the  northwesternmost 
head  of  the  Connecticut.  This  did  not  satisfy  the  claim  of  New 
Hampshire.  The  line  agreed  to  in  the  present  treaty  follows  the 
highlands  to  the  head  of  Hall's  Stream  and  thence  down  that  river, 
embracing  the  whole  claim  of  New  Hampshire  and  establishing  her 
title  to  100,000  acres  of  territory  more  than  she  would  have  had  by 
the  decision  of  the  King  of  the  Netherlands. 

"By  the  treaty  of  1783  the  line  is  to  proceed  down  the  Connecti 
cut  River  to  the  45th  degree  of  north  latitude,  and  thence  west  by 
that  parallel  till  it  strikes  the  St.  Lawrence.  Recent  examinations, 
having  ascertained  that  the  line  heretofore  received  as  the  true  line 
of  latitude  between  those  points  was  erroneous,  and  that  the  cor 
rection  of  this  error  would  not  only  leave  on  the  British  side  a  con 
siderable  tract  of  territory  heretofore  supposed  to  belong  to  the 
States  of  Vermont  and  New  York,  but  also  Rouses  Point,  the  site  of 
a  military  work  of  the  United  States,  it  has  been  regarded  as  an  ob 
ject  of  importance  not  only  to  establish  the  rights  and  jurisdiction 
of  those  States  up  to  the  line  to  which  they  have  been  considered  to 
extend,  but  also  to  comprehend  Rouses  Point  within  the  territory  of 
the  United  States.  The  relinquishment  by  the  British  Government 
of  all  the  territory  south  of  the  line  heretofore  considered  to  be  the 
true  line  has  been  obtained,  and  the  consideration  for  this  relinquish 
ment  is  to  inure  by  the  provisions  of  the  treaty  to  the  States  of 
Maine  and  Massachusetts. 

"The  line  of  boundary,  then,  from  the  source  of  the  St.  Croix  to 
the  St.  Lawrence,  so  far  as  Maine  and  Massachusetts  are  concerned, 
is  fixed  by  their  own  consent  and  for  considerations  satisfactory  to 
them,  the  chief  of  these  considerations  being  the  privilege  of  trans 
porting  the  lumber  and  agricultural  products  grown  and  raised  in 
Maine  on  the  waters  of  the  St.  Johns  and  its  tributaries  down  that 
river  to  the  ocean  free  from  imposition  or  disability.  The  impor 
tance  of  this  privilege,  perpetual  in  its  terms,  to  a  country  covered 
at  present  by  pine  forests  of  great  value,  and  much  of  it  capable 
hereafter  of  agricultural  improvement,  is  not  a  matter  upon  which 
the  opinion  of  intelligent  men  is  likely  to  be  divided. 


I? 

"So  far  as  New  Hampshire  is  concerned,  the  treaty  secures  all 
that  she  requires,  and  New  York  and  Vermont  are  quieted  to  the 
extent  of  their  claim  and  occupation.  The  difference  which  would 
be  made  in  the  northern  boundary  of  these  two  States  by  correcting 
the  parallel  of  latitude  may  be  seen  on  Tanner's  maps  (1836),  new 
atlas,  maps  Nos.  6  and  9."  (Richardson's  Messages  and  Papers  of 
the  Presidents,  Vol.  IV,  pp.  164,  165.) 

On  August  29,  1842,  the  Senate,  by  a  vote  of  39  to  9,  gave  its 
consent  to  the  exchange  of  ratifications. 

Under  this  settlement  of  the  boundary  Canada  and  New  Bruns 
wick  received  a  portion  of  the  territory  claimed  by  Maine,  and  in 
return  certain  commercial  concessions  along  the  St.  John  River  and 
in  New  Brunswick  were  granted  to  the  lumbering  and  agricultural 
interests  in  Maine,  and  the  strip  of  land  lying  between  the  Valentine 
and  Collins  line  and  the  45th  parallel,  from  the  Connecticut  River 
to  the  St.  Lawrence,  which  included  the  fort  at  Rouses  Point,  was 
surrendered  to  the  United  States. 

Inasmuch  as  the  acquisition  of  this  strip  did  not  inure  to  the 
benefit  of  Maine  and  Massachusetts,  which  had  an  interest  in  com 
mon  with  Maine  in  the  territory  claimed  as  part  of  that  State,  it  was 
agreed  that  the  Federal  Government  should  pay  to  these  two  States 
the  sum  of  $300,000,  to  be  divided  between  them  equally,  and  also 
should  reimburse  them  for  expenses  incurred  in  protecting  the  dis 
puted  territory  and  making  a  survey  of  it  in  1838,  and  also  that 
these  States  should  receive  their  proportion  of  the  ''disputed  terri 
tory  fund"  arising  from  charges  for  cutting  lumber  in  the  disputed 
territory,  which  had  been  held  by  New  Brunswick  pending  the  set 
tlement  of  the  dispute. 

It  was  also  provided  that  all  grants  of  land  made  by  either  party 
within  the  disputed  territory  should  be  ratified,  and  in  case  of  con 
flicting  grants  an  equitable  adjustment  of  claims  should  be  made. 

The  provisions  covering  these  points  will  be  found  in  Articles 
III,  IV,  and  V  of  the  treaty. 

By  Article  VI  of  the  Treaty  of  1842  it  was  provided  that — 

"For  the  purpose  of  running  and  tracing  those  parts  of  the  line 
between  the  source  of  the  St.  Croix  and  the  St.  Lawrence  River 
which  will  require  to  be  run  and  ascertained,  and  for  marking  the 
residue  of  said  line  by  proper  monuments  on  the  land,  two  com 
missioners  shall  be  appointed  "- 

One  by  each  Government  ;  and  it  was  further  provided  that  they— 

"Shall  proceed  to  mark  the  line  above  described  from  the  source  of 
the  St.  Croix  to  the  river  St.  John  ;  and  shall  trace  on  proper  maps  the 
dividing-line  along  said  river  and  along  the  river  St.  Francis  to 
the  outlet  of  the  Lake  Pohenagamook ;  and  from  the  outlet  of  the 
said  lake  they  shall  ascertain,  fix,  and  mark,  by  proper  and  durable 


i8 

monuments  on  the  land,  the  line  described  in  the  first  article  of  this 
treaty." 

It  was  further  provided  that  their  joint  report  should  be  accompa 
nied  by  maps  certified  by  them  to  be  true  maps  of  the  new  boundary. 

The  Commissioners  appointed  under  this  article  were  J.  B.  B. 
Estcourt,  on  the  part  of  Great  Britain,  and  Albert  Smith,  on  the 
part  of  the  United  States,  who  carried  out  the  work  as  required,  and 
on  June  28,  1847,  their  final  report  was  completed  and  signed.  This 
report  contains  a  detailed  description  of  the  boundary  as  surveyed 
and  marked  by  them  and  was  accompanied  by  maps  "faithfully  con 
structed  from  that  survey."  Their  report  concludes  with  the  state 
ment  that — 

"The  most  perfect  harmony  has  existed  between  the  two  Com 
missioners  from  first  to  last  and  no  differences  have  arisen  between 
the  undersigned  in  the  execution  of  the  duties  intrusted  to  them." 

A  copy  of  this  report  is  printed  in  Volume  IV  of  Richardson's 
Messages  and  Papers  of  the  Presidents,  pages  171-177.  (See  also 
S.  Ex.  Doc.  No.  71,  3oth  Cong.,  ist  sess.) 

A  map  "showing  the  lines  as  respectively  claimed  by  the  United 
States  and  Great  Britain  under  the  Treaty  of  1783,  as  awarded  by 
the  King  of  the  Netherlands,  and  as  settled  in  1842  by  the  Treaty 
of  Washington"  was  prepared  in  1843  under  the  direction  of  the 
United  States  Government.  A  copy  of  this  map  will  be  found  in 
Moore  on  International  Arbitrations,  volume  i,  page  148. 

Before  this  report  was  filed  certain  of  the  original  maps  and 
surveys  prepared  to  be  filed  with  the  United  States  Government  in 
connection  with  it  were  destroyed  by  fire,  as  appears  from  the  follow 
ing  extracts  from  a  letter  dated  April  20,  1848,  from  Commissioner 
Smith  to  Mr.  Buchanan,  Secretary  of  State: 

"I  have  to  perform  the  painful  duty  of  informing  you  that  the 
maps  of  that  line  and  of  the  adjacent  country,  which  had  been  elabo 
rately  constructed  by  the  scientific  corps  on  the  part  of  the  United 
States,  and  contained  upon  100  sheets  of  drawing  paper  of  the 
largest  size,  together  with  the  tables  of  the  survey,  have  been  de 
stroyed  by  the  conflagration  of  the  building  in  which  they  were 
contained. 

******* 

"All  the  maps,  drawings,  and  tables  had  been  completed  and  duly 
authenticated  by  the  Joint  Commissioners,  and  were  ready  to  be 
deposited  with  their  joint  report  under  their  hands  and  seals  in  the 
archives  of  this  Government.  Of  this  I  had  the  honor  to  inform 
you  in  my  letter  of  the  24th  ultimo. 

******* 

"There  are  tracings  of  the  maps  upon  'tissue  paper, '  without  the 
topography,  in  the  State  of  Maine,  but  they  are  not  signed  by  the 
Commissioners. 


19 

''The  field  books  of  the  engineers  were,  fortunately,  not  in  Major 
Graham's  office,  and  are  preserved. 

"Duplicates  of  the  maps,  duly  authenticated,  have  been  placed 
in  the  British  archives  at  London,  which,  although  they  have  not 
the  topography  of  the  country  so  fully  laid  down  upon  them  as  it 
was  upon  our  own,  represent  with  equal  exactness  the  survey  of  the 
boundary  itself.  Should  it  be  deemed  expedient  by  this  Govern 
ment  to  procure  copies  of  them,  access  to  those  archives  for  that 
purpose  would  undoubtedly  be  permitted  and  the  object  accom 
plished  at  small  expense,  and  when  completed  these  copies  could  be 
authenticated  by  the  Joint  Commissioners  in  accordance  with  the 
provisions  of  the  treaty."  (Richardson's  Messages  and  Papers  of 
the  Presidents,  Vol.  IV,  p.  170.) 

Apparently  there  are  no  charts  of  this  section  of  the  boundary 
now  on  file  in  the  Department  of  State  which  have  a  treaty  value  or 
can  be  regarded  as  official  reproductions  of  treaty  charts.  There  is 
on  file,  however,  a  set  of  lithographic  copies  of  a  series  which  do 
not  bear  the  signatures  of  the  Commissioners,  but  are  entitled, 
"Boundary  under  the  Treaty  of  Washington,  August  9,  1842,"  etc., 
and  are  signed  by  Maj.  J.  D.  Graham,  who  was  the  topographical 
engineer  of  the  Commission  on  the  part  of  the  United  States. 

An  examination  of  the  records  of  this  Commission  in  the  British 
Foreign  Office,  made  in  August,  1906,  with  the  assistance  of  Mr. 
Brant,  the  Foreign  Office  librarian,  disclosed  on  file  there  a  series  of 
maps,  bound  in  five  volumes,  entitled,  "Maps  of  the  boundary 
under  the  Treaty  of  Washington,  August  9,  1842,"  which  maps  are 
indorsed : 

"Maps  of  the  boundary  between  the  United  States  and  the  British 
possessions  of  North  America,  as  established  by  the  Treaty  of  Wash 
ington,  August  9,  1842,  and  surveyed  and  marked  under  the  direction 
of  che  Joint  Commission  appointed  under  the  sixth  article  of  that 
treaty. 

(Signed)  "ALBERT  SMITH, 

"U.  S.  Commissioner. 

"J.    B.    BUCKNALL    ESTCOURT,    Lt.    Col., 

4  iff.  B.  M.  Commissioner  of  Boundary. " 

In  addition  to  this  set  of  five  volumes  of  maps  there  are  on  file  in 
the  British  Foreign  Office  four  bound  volumes  of  field,  notes  and 
surveys  and  tables  of  distances  and  deflections,  etc.,  prepared  sepa 
rately  by  the  respective  Commissioners.  There  is  also  on  file  there 
one  bound  volume  of  maps,  which  bears  the  following  indorsement: 

"This  volume  was  used  by  the  Commissioners  in  apportioning 
the  islands  of  the  St.  John.  The  boundary  they  traced  upon  it  was 
also  traced  upon  a  similar  volume  prepared  for  the  American  Com 
missioner  at  the  same  time. 

"J.  B.  B.  E." 
[J.  B.  BUCKNALL  ESTCOURT.] 


20 

Neither  a  duplicate  original  set  nor  copies  of  the  above-described 
maps  and  records  are  on  file  in  the  Department  of  State. 

It  is  reported  that  copies  of  a  tabular  statement  showing  the 
deflection  angles  and  distances  between  the  monuments,  with  the 
data  procured  by  Lieutenant  Thorn,  U.  S.  A.,  from  a  resurvey  made 
in  1851  are  on  file  in  the  War  Department  at  Washington. 

The  line  laid  down  by  these  Commissioners  was  marked  with 
hollow  cast-iron  pillars  or  monuments  6  feet  long,  the  lower  half 
in  the  ground  being  6  inches  square,  with  projecting  flanges  at  the 
bottom,  the  upper  half  above  the  ground  tapering  to  4  inches,  and 
the  top  closed  in  the  form  of  a  pyramid.  These  monuments  are 
marked  on  the  north  side,  "J.  B.  Estcourt;"  on  the  south  side, 
"Albert  Smith;"  on  the  east  side,  "Treaty  of  Washington;"  and 
on  the  west  side,  "Boundary,  August  9,  1842." 

A  section  of  the  "Valentine  and  Collins"  line  between  Bebee 
Plain  and  Main  street  of  Derby  Line  Rock  Island  was  resurveyed 
by  a  special  Joint  Commission  in  1849  to  settle  a  dispute  as  to  the 
location  of  certain  boundary  monuments  along  that  part  of  the  line. 
The  duplicate  original  of  the  joint  report  of  these  Commissioners  is 
on  file  in  the  Department  of  State  at  Washington. 

A  detailed  description  of  the  Valentine  and  Collins  line  will  be 
found  in  Birdseye's  Revised  Statutes  of  New  York,  first  edition, 
pages  2744-2746,  and  third  edition,  Volume  III,  page  3320.  See 
also  New  York  State  Laws  of  1892,  chapter  678,  section  5. 

THE  RE-MARKING  OF  THE  BOUNDARY  BETWEEN  NEW  YORK  AND 
CANADA,  AND  PROPOSALS  FOR  RE-MARKING  THE  ENTIRE  LINE 
TO  THE  MOUTH  OF  THE  ST.  CROIX  RIVER. 

An  examination  of  the  monuments  along  the  boundary  between 
the  State  of  New  York  and  Canada  was  made  in  1887  under  a  New 
York  State  law  passed  in  that  year,  requiring  the  State  engineer  and 
surveyor  to  make  such  examination  then  and  every  three  years  there 
after.  The  examination  under  this  law  in  1890,  at  the  expiration  of 
the  first  triennial  period,  was  participated  in  by  an  officer  appointed 
by  the  Canadian  Government.  It  was  discovered  then  and. in  subse 
quent  examinations  that  very  serious  deterioration  of  the  monuments 
had  occurred,  showing  a  progressive  falling  off  in  their  condition 
and  the  necessity  for  repairs  and  renewals.  The  same  conditions 
were  reported  along  the  rest  of  the  boundary,  wherever  examinations 
were  made. 

Notwithstanding  these  conditions,  the  question  of  re-marking  this 
boundary  was  not  raised  by  either  Government  prior  to  the  meeting 
of  the  Joint  High  Commission  in  1898,  and  the  subject  did  not  come 
up  for  consideration  before  that  Commission. 


21 

In  1899,  however,  the  New  York  State  engineer  and  surveyor,  in 
anticipation  of  his  triennial  inspection  which  was  required  to  be 
made  in  that  year,  called  the  situation,  so  far  as  it  related  to  the 
New  York  boundary  line,  to  the  attention  of  the  surveyor-general 
of  Canada  and  suggested  that  another  joint  examination  be  made. 
The  Canadian  Government  expressed  itself  as  unwilling  to  enter 
upon  a  mere  examination  of  the  monuments  without  arranging  at 
the  same  time  for  their  repair  and  renewal  wherever  necessary,  and 
suggested  that  as  this  feature  of  the  work  would  be  out  of  the  power 
of  the  State  of  New  York  or  of  Canada,  either  separately  or  jointly, 
without  an  international  agreement,  the  question  was  one  which 
should  be  arranged  for  through  the  regular  diplomatic  channels. 

Following  up  this  suggestion  the  Canadian  Privy  Council  adopted 
a  report  approved  May  26,  1900,  proposing  that  the  two  Govern 
ments  join  in  making  an  examination  of  and  in  re-marking  where 
necessary  ''the  whole  of  the  southern  boundary  wherever  it  has  been 
surveyed  by  the  various  commissions  appointed  for  that  purpose." 

The  suggestion  as  to  re-marking  the  entire  boundary  was  not 
taken  up  at  that  time  by  the  United  States,  but  the  Secretary  of 
State,  on  October  29,  1900,  at  the  request  of  the  New  York  State 
engineer  and  surveyor,  wrote  to  the  British  ambassador  calling 
attention  to  the  condition  of  the  New  York  State  boundary  monu 
ments  and  inquiring  .whether  the  Government  of  Canada  would  be 
"willing  to  join  in  having  these  monuments  replaced  and  put  in 
proper  and  first-class  condition,"  and  adding:  "As  no  new  survey  is 
involved,  but  simply  the  repairing  of  existing  monuments,  it  would 
not  seem  to  require  any  new  convention,  but  merely  provision  on 
both  sides  for  the  joint  performance  of  the  work." 

In  response  to  this  suggestion  the  Canadian  Privy  Council 
adopted  a  report,  approved  January  5,  1901,  expressing  their  willing 
ness  to  join  with  the  United  States  "in  the  examination  and  restora 
tion,  where  necessary,  of  the  monuments  along  the  line  between  the 
Province  of  Quebec  and  the  State  of  New  York,"  although  it  was 
noted  that  this  was  only  a  small  part  of  the  work  proposed  by  the 
Canadian  Government,  and  at  the  same  time  they  renewed  their 
suggestion  "that  the  scope  of  the  proposed  joint  operations  be 
enlarged  so  as  to  cover  the  whole  of  the  boundary  line,  which  was 
marked  under  the  Webster-Ashburton  Treaty,  from  the  St.  Law 
rence  to  the  St.  Croix  River." 

This  action  of  the  Canadian  Privy  Council  was  communicated  to 
the  Secretary  of  State  by  the  British  ambassador  in  his  letter  of 
January  12,  1901.  Meanwhile,  the  question  of  re-marking  the  bound 
ary  all  the  way  to  the  Pacific  coast  had  also  come  up  for  considera 
tion,  and  on  January  29,  1901,  the  Secretary  of  State  wrote  to  the 


22 

British  ambassador  proposing  arrangements  for  the  entire  boundary. 
With  respect  to  the  part  now  under  consideration,  from  the  St.  Law 
rence  to  the  St.  Croix,  he  proposed  that  a  separate  convention  be 
concluded  arranging  for  re-marking  it  by  joint  operation.  His 
preference  there  expressed  for  a  convention  between  the  two  Gov 
ernments  for  this  purpose,  instead  of  leaving  the  matter  to  joint 
action  by  the  several  States  and  the  Canadian  Government,  was 
explained  on  the  ground  that,  "in  this  form,  the  arrangement  would, 
I  think,  be  more  uniform  and  satisfactory  in  its  working  than  if  the 
mere  restoration  of  impaired  monuments  were  left  to  the  coopera 
tive  action  of  the  various  State  governments  and  the  Government 
of  the  Dominion  of  Canada." 

In  a  report  of  the  Canadian  Privy  Council,  approved  March  5, 
1901,  this  proposal  was  taken  up  for  consideration,  and  after  noting 
that  it  was  in  accord  with  the  desire  expressed  in  their  reports  of 
May  26,  1900,  and  January  5,  1901,  "differing  therefrom  only  in  the 
proposition  that  the  action  necessary  be  provided  for  by  a  formal 
convention,"  it  was  advised  that  the  Government  of  Canada  accede 
to  this  proposition  to  provide  for  these  surveys  by  convention. 

In  June  following  it  was  suggested  by  the  New  York  State  engi 
neer  and  surveyor  that  the  re-marking  of  the  New  York  boundary 
be  undertaken  without  first  waiting  for  action  with  respect  to  the 
Maine,  New  Hampshire,  and  Vermont  lines,  and  he  requested  that 
he  be  put  in  direct  communication  with  the  proper  officials  of  the 
Canadian  Government  for  the  purpose  of  undertaking  at  once,  con 
jointly  with  them,  the  placing  of  new  monuments  along  that  bound 
ary,  as  the  monuments  there  were  in  such  a  fragile  and  broken 
condition  that  unless  replaced  very  soon  by  more  permanent  ones 
the  boundary  line  might  be  lost. 

Acting  upon  this  suggestion  the  Secretary  of  State  wrote  to  the 
British  embassy  on  July  15,  1901,  explaining  the  circumstances  and 
making  the  following  proposal: 

"While  the  Department  still  adheres  to  the  view  expressed  in 
its  note  of  January  29, ,1901,  in  which  it  is  gratified  to  see  that  the 
Government  of  the  Dominion  of  Canada  shares  that  a  general  sur 
vey  of  the  whole  land  and  water  boundary  between  the  two  coun 
tries,  with  a  view  to  replacing  lost  monuments  and  erecting  new 
ones,  as  well  as  determining  by  buoys  or  ranges,  or  both,  the  water 
boundaries  in  the  narrow  lake  channels,  is  most  desirable,  the  ques 
tion  presented  on  the  New  York  boundary  is  of  so  simple  a  nature 
that  it  is  conceived  that  no  difficulty  will  be  found  in  carrying  out, 
forthwith,  the  suggestion  of  the  governor  of  the  State.  There  is  no 
question  of  settling  any  dispute  arising  from  the  total  disappearance 
of  old  monuments  or  the  insufficient  marking  of  the  line  by  the  treaty 
commissioners.  It  is  merely  a  matter  of  repairing  existing  line 
marks,  as  to  the  situation  of  which  no  question  of  doubt  can  arise. 


23 

"It  is  not  thought  that  an  international  convention  would  be 
necessary  to  provide  for  painting  iron  monuments,  cementing  the 
defective  masonry  of  stone  monuments,  restoring  inscriptions  oblit 
erated  by  exposure  to  the  elements,  or,  in  short  executing  all  such 
mere  repairs  as  may  be  needful  to  enable  the  line  marks  to  subserve 
the  purpose  for  which  they  were  set  up.  All  this  can  be  done  by 
the  joint  action  of  the  appropriate  agents  of  the  engineer's  depart 
ment  of  the  State  of  New  York  and  of  the  Department  of  the  Inte 
rior  of  Canada,  without  prejudice  to  any  future  agreement  between 
the  two  Governments  for  the  more  effective  demarcation — if  need 
be — of  the  existing  treaty  boundary  in  that  quarter." 

In  response  to  this  proposal  the  Canadian  Privy  Council  adopted 
a  report,  approved  August  16,  1901,  to  the  effect  that — 

"The  proposed  cooperation  with  the  State  of  New  York  of  the 
Government  of  the  United  States  is  quite  in  accord  with  the  views 
expressed  by  his  excellency's  advisers  in  the  minutes  of  council  of 
May  26,  1900,  and  January  5,  1901,  although  the  scope  of  the  pro 
posed  operations  is  restricted  to  the  limits  of  the  State  of  New  York, 
and  as  set  forth  in  these  minutes  an  inquiry  into  the  condition  of 
the  whole  land  boundary  between  the  United  States  and  Canada  is 
to  be  desired." 

It  was  accordingly  determined  that  the  United  States  be  informed 
of  the  concurrence  of  Canada  in  the  proposal  of  the  Secretary  of 
State— 

"It  being  understood  that  the  agreement  to  the  proposed  coop 
eration  is  without  prejudice  to  any  further  agreement  between  the 
two  Governments  for  the  more  effective  demarcation  of  the  existing 
treaty  boundary  in  that  quarter,  and  that  while  each  Government 
shall  pay  the  expenses  of  its  commissioners  and  surveyors  the  actual 
cost  of  repairs  shall  be  equally  divided." 

The  assent  to  this  arrangement  on  the  part  of  Canada  was  stated 
in  a  letter  of  August  25,  1901,  from  the  British  embassy  to  the 
Department  of  State. 

This  concurrence  of  views  having  been  reached,  it  was  arranged 
that  the  restoration  of  defective  monuments  marking  the  boundary 
of  New  York  and  Canada  be  proceeded  with  under  the  joint  direc 
tion  of  the  State  engineer  of  New  York  and  the  Canadian  Depart 
ment  of  the  Interior,  without  awaiting  the  conclusion  of  a  more 
formal  agreement  between  the  United  States  and  Great  Britain. 

Pursuant  to  this  arrangement  the  examination  and  re-marking  of 
the  boundary  was  undertaken  by  Edward  A.  Bond,  State  engineer 
and  surveyor,  as  commissioner  for  the  State  of  New  York,  and 
William  F.  King,  chief  astronomer  of  the  Interior  Department,  com 
missioner  for  Canada.  Their  report  was  signed  in  duplicate  on 


24 

January  TO,  1903,  and  was  accompanied  by  a  detailed  report  of  the 
field  work  made  jointly  by  H.  P.  Willis,  representing  the  New  York 
commissioner,  and  C.  A.  Bigger,  representing  the  Canadian  com 
missioner.  These  reports  will  be  found  printed  in  full  in  the  annual 
report  of  the  New  York  State  engineer  and  surveyor  for  the  year 
1902,  pages  67-102. 

The  description  of  the  monuments  placed  by  them  to  mark  this 
boundary  is  given  in  their  report  as  follows: 

"The  monuments  are  6  feet  in  length,  the  lower  portion  of  the 
stone  having  an  ashlar  face,  12  inches  square,  for  i  foot  of  its  length. 
From  this  point,  for  a  distance  of  4  feet  7%  inches,  the  stone  tapers 
from  12  inches  to  9  inches  on  each  side,  with  each  corner  having  a 
beveled  face  of  ^  inch  wide.  The  remaining  4^  inches  at  the  top 
is  dressed  in  the  form  of  a  pyramid. 

"It  was  decided  that  they  should  be  set  in  concrete  bases  3  feet 
square  and  averaging  4  feet  6  inches  in  the  ground  and  9  inches 
above  the  surface.  One  foot  of  the  granite  stone  was  embedded  in 
the  concrete.  The  upper  surface  of  the  concrete  was  given  a  slope 
to  turn  rain  and  on  it  was  imprinted  the  lettering,  as  follows: 

"On  the  south  side,  'U.-S.' 

"On  the  north  side,  'Canada.' 

"On  the  west  side,  'Treaty,  1842.' 

"On  the  east  side  the  number  of  the  monument,  with  ' Renewed, 
1902.' 

"In  the  case  of  the  new  monuments  the  word  'renewed'  was 
omitted  and  the  letter  A  followed  the  number." 

It  is  to  be  noted  that  this  arrangement,  as  appears  from  the  cor 
respondence  and  proceedings  above  referred  to  when  read  at  length, 
was  understood  to  be  merely  preliminary  to  the  making  of  a  more 
formal  agreement  between  the  United  States  and  Great  Britain, 
such  as  was  then  contemplated  but  postponed  on  account  of  the 
reported  necessity  for  immediate  action  along  the  New  York  bound 
ary,  and  in  view  of  this  understanding  and  of  the  terms  of  the 
arrangement  and  the  proviso  that  it  was  made  without  prejudice  to 
further  action  by  the  two  Governments  it  may  be  found  desirable 
that  some  further  action  with  respect  to  this  portion  of  the  boundary 
should  be  taken  between  the  United  States  and  Great  Britain  in 
connection  with  the  negotiations  now  under  consideration.  An  offi 
cial  copy  of  the  report  of  the  commissioners  above  referred  to,  which 
had  never  been  officially  communicated  to  the  Department  of  State, 
has  recently  been  obtained  from  the  State  of  New  York  and  is  now 
on  file  in  the  Bureau  of  Rolls  and  Library.  In  connection  with  this 
report  a  copy  of  the  survey  by  the  New  York  State  engineer  of 
this  portion  of  the  line,  showing  the  location  of  the  monuments,  was 
also  filed  in  the  Department  of  State. 


ARRANGEMENTS  FOR  MARKING  AND  MAPPING  THE  BOUNDARY 
BETWEEN  THE  STATES  OF  VERMONT,  NEW  HAMPSHIRE,  AND 
MAINE,  ON  THE  ONE  SIDE,  AND  CANADA,  ON  THE  OTHER. 

It  appears  from  the  diplomatic  correspondence  above  referred  to 
that  the  importance  of  marking  this  portion  of  the  boundary  as  soon 
as  possible  is  recognized  by  the  Governments  on  both  sides  of  the 
line,  and  it  also  appears  that  they  are  in  accord  on  the  proposition 
that  where  the  work  to  be  done,  as  is  the  case  with  respect  to  this 
portion  of  the  line,  involves  no  disputed  question  as  to  the  course 
or  location  of  the  line  but  requires  only  the  restoration  of  original 
monuments  and  the  erection  of  new  ones  in  order  to  render  more 
effective  the  boundary  as  already  surveyed  and  marked,  it  is  not 
necessary  to  enter  into  a  formal  convention  for  that  purpose,  and 
that  an  informal  arrangement  making  provision  on  both  sides  for 
the  joint  performance  of  the  work  is  all  that  is  required. 

An  important  step  in  the  direction  of  the  desired  result  was  taken 
in  1905  by  the  United  States  and  Canada  in  causing  a  preliminary 
examination  of  this  portion  of  the  boundary  to  be  made  by  repre 
sentatives  of  the  two  Governments  acting  jointly.  A  joint  report  of 
this  examination  has  been  prepared  by  the  representatives  so  ap 
pointed,  who  were  Mr.  J.  B.  Baylor,  Assistant  Superintendent  of  the 
United  States  Coast  and  Geodetic  Survey,  representing  the  United 
States,  and  G.  C.  Rainboth,  D.  L.  S.,  representing  Canada.  This 
report  is  dated  February  22,  1906,  and  contains  a  general  review  of 
the  past  and  present  conditions  of  the  northeastern  boundary  of  the 
United  States  and  Canada  from  the  Richelieu  River  to  the  source  of 
the  St.  Croix  River,  with  recommendations  as  to  what  should  further 
be  done.  It  also  shows  in  detail  the  present  condition  of  each  of 
the  monuments  inspected  by  them. 

This  examination  has  shown  the  necessity  for,  and  the  report 
strongly  urges,  a  survey  and  remonumenting  of  this  entire  boundary. 

A  suggestion  has  already  been  made,  through  the  British  ambas 
sador,  to  the  Canadian  Government  that  joint  operations  be  under 
taken  for  carrying  out  the  work  proposed.  (See  Mr.  Root's  notes 
to  the  British  ambassador  of  January  5  and  April  26,  1906.) 

It  is  stated  in  the  report  that  there  seems  to  be  no  immediate 
necessity  fora  resurvey  of  the  boundary  line  as  defined  by  the  water 
courses  through  this  portion  of  the  boundary,  namely,  Hall's  Stream, 
the  southwest  branch  of  the  St.  John  River,  the  St.  Francis  River, 
and  the  St.  John  River,  and  that  it  will  be  sufficient  for  the  present 
to  put  in  fresh  monuments  on  the  islands,  "without  fixing  accurately 
the  positions  of  the  new  monuments  by  actual  surveys."  These 
waterways  will  have  to  be  re-marked  ultimately,  however,  and  it 


26 

would  seem  to  be  desirable  that  whatever  is  necessary  to  make  the 
marking  of  the  boundary  complete  and  permanent  should  be  done 
as  soon  as  possible. 

The  report  also  calls  attention  to  the  loss  by  fire  of  the  charts 
and  tabular  statements  of  distances  and  angles  prepared  by  Com 
missioners  Estcourt  and  Smith  under  Article  VI  of  the  Treaty  of 
1842,  and  suggests  that  photographic  copies  of  the  duplicate  origi 
nals  of  these  be  obtained  from  the  British  Government. 

This  report  also  recommends  that  joint  action  be  taken  by  the 
Governments  on  either  side  of  the  line  for  the  removal  of  all  build 
ings  used  for  commercial  purposes  which  stand  on  or  in  immediate 
proximity  to  the  boundary  line,  and  that  the  construction  of  any  new 
buildings  on  the  line  or  the  use  for  commercial  purposes  of  any  old 
buildings  so  placed  be  prohibited.  In  explanation  of  this  recom 
mendation  it  is  stated  that  the  use  of  such  buildings,  particularly 
when  used  for  saloons,  stores,  or  factories,  gives  rise  to  customs 
frauds  and  other  unlawful  practices. 

Under  the  United  States  Revised  Statutes,  section  3107,  it  is  pro 
vided  that  if  any  store,  warehouse,  or  other  building  upon  or  near 
the  boundary  line  between  the  United  States  and  any  foreign  coun 
try  is  found  to  contain  dutiable  merchandise,  the  same,  together 
with  such  building,  shall  be  seized,  forfeited,  and  disposed  of  ac 
cording  to  law,  and  the  building  shall  be  forthwith  taken  down  or 
removed.  It  is  understood  that  a  similar  law  has  been  enacted  in 
Canada. 

It  appears  from  the  report  that  under  existing  conditions  these 
laws  are  practically  inoperative,  owing  to  the  difficulty  of  determin 
ing  jurisdictional  questions.  The  boundary  line  as  now  marked  is 
so  imperfectly  defined  that  it  is  impossible  to  locate  it  exactly  with 
respect  to  many  of  the  buildings  so  placed.  In  this  connection  it  is 
further  suggested  by  the  report  that  a  strip  30  feet  wide — 15  feet  on 
each  side  of  the  boundary — shall  be  reserved  by  the  two  Govern 
ments  exclusively  for  Government  uses. 

It  seems  likely  that  the  more  complete  marking  of  the  line  as 
now  proposed  will  obviate  to  some  extent  the  difficulty  which  this 
suggestion  is  designed  to  meet.  The  Canadian  Government  has  not 
yet  committed  itself  on  the  question  of  this  strip,  and  the  suggestion 
requires  further  examination  and  consideration. 

By  an  act  of  Congress  approved  June  16,  1906,  the  sum  of  $20,000 
was  appropriated  "for  the  more  effective  demarcation  and  mapping 
of  the  boundary  line  between  the  United  States  and  Canada  near  the 
45th  parallel  from  the  Richelieu  River  to  Hall's  Stream,  as  estab 
lished  by  the  Commissioners  of  1842-1848  under  the  Treaty  of 
Washington  of  August  9,  1842."  (Diplomatic  and  consular  service 
appropriations  for  the  fiscal  year  ending  June  30,  1907.) 


27 

A  similar  appropriation  was  made  on  the  part  of  Canada,  and  by 
an  exchange  of  notes  between  the  Department  of  State  and  the 
British  embassy  it  was  agreed  and  arranged  that  a  commission  be 
appointed  to  carry  out  the  work  and  that  each  Government  should 
bear  the  expense  of  its  own  commissioner  and  of  his  surveyor  and 
assistants,  and  that  the  two  Governments  should  bear  equally  the 
cost  of  the  monuments,  their  transportation,  and  erection.  (Notes 
of  May  31,  1906,  Mr.  Townley  to  the  Secretary  of  State,  and  of 
June  12  and  July  n,  1906,  Mr.  Bacon  to  the  British  ambassador.) 

On  July  10,  1906,  Mr.  O.  H.  Tittmann,  Superintendent  of  the 
Coast  and  Geodetic  Survey,  was  designated  as  Commissioner  to 
represent  the  United  States  with  respect  to  the  re-marking  and 
mapping  of  the  entire  line  from  the  Richelieu  River  eastward  to 
the  waters  of  the  St.  Croix  River,  but  in  view  of  the  limitation  of  the 
work  to  be  carried  on  under  the  appropriation  referred  to,  the  super 
vision  of  the  demarcation  of  the  line  between  the  Richelieu  River 
and  Hall's  Stream  was  the  immediate  duty  assigned  to  him,  and  he 
was  authorized  "to  arrange  the  details  and  to  carry  out  the  work 
and  to  sign  the  final  report  and  maps  as  Commissioner  for  the  United 
States  jointly  with  the  British  Commissioner." 

Mr.  W.  F.  King  having  been  designated  as  Commissioner  on 
the  part  of  Great  Britain,  the  work  authorized  was  thereupon 
jointly  undertaken  by  him  and  Mr.  Tittmann,  and  it  is  understood 
to  be  now  nearing  completion. 


PART    II. 

THE  BOUNDARY  FEOM  THE  INTERSECTION  OF  THE 
FORTY-FIFTH  PARALLEL  AND  THE  ST.  LAWRENCE 
RIYER  TO  THE  LAKE  OF  THE  WOODS. 


THE  BOUNDARY  FROM  THE  INTERSECTION  OF  THE 
FORTY-FIFTH  PARALLEL  AND  THE  ST.  LAWRENCE 
RIVER  TO  THE  LAKE  OF  THE  WOODS. 


This  portion  of  the  boundary  is  described  in  Article  II  of  the 
provisional  treaty  of  peace  with  Great  Britain  of  1782  and  in  Article 
II  of  the  definitive  treaty  of  peace  of  1783  as  follows: 

"  *  *  *  thence  (from  the  point  where  the  45th  degree  of 
north  latitude  strikes  the  River  Iroquois  or  Cattaraquy)  along  the 
middle  of  said  river  into  Lake  Ontario,  through  the  middle  of  said 
lake  until  it  strikes  the  communication  by  water  between  that  lake 
and  Lake  Erie;  thence  along  the  middle  of  said  communication  into 
Lake  Erie,  through  the  middle  of  said  lake  until  it  arrives  at  the 
water  communication  between  that  lake  and  Lake  Huron;  thence 
along  the  middle  of  said  water  communication  in  Lake  Huron; 
thence  through  the  middle  of  said  lake  to  the  water  communication 
between  that  lake  and  Lake  Superior  ^thence  through  Lake  Superior 
northward  of  the  isles  Royal  and  Phelipeaux,  to  the  Long  Lake; 
thence  through  the  middle  of  said  Long  Lake  to  the  water  com 
munication  between  it  and  the  Lake  of  the  Woods,  to  the  said  Lake 
of  the  Woods;  thence  through  the  said  lake  to  the  most  northwest 
ern  point  thereof  and  from  thence  on  a  due  west  course  to  the  river 
Mississippi." 

The  boundary  as  above  defined  was  not  surveyed  or  charted  by 
joint  action  of  the  two  Governments  until  the  appointment  of  Com 
missioners  for  that  purpose  under  Articles  VI  and  VII  of  the  Treaty 
of  1814. 

THE   PORTION    OF    THIS    LINE    INCLUDED    IN   ARTICLE   VI    OF    THE 

TREATY  OF  1814. 

By  Article  VI  of  that  treaty  it  was  provided  that  two  Commis 
sioners  should  be  appointed,  one  by  each  Government,  to  designate 
the  boundary  through  the  Great  Lakes  "to  the  water  communica 
tion  between  Lake  Huron  and  Lake  Superior,"  and  by  Article  VII  it 
was  provided  that  the  same  Commissioners,  after  they  had  executed 
the  duties  assigned  to  them  under  Article  VI,  should  determine  the 
boundary  "from  the  water  communication  between  Lake  Huron  and 
Lake  Superior  to  the  most  northwestern  point  of  the  Lake  of  the 
Woods." 

31 


Messrs.  Peter  B.  Porter  and  Anthony  Barclay  were  appointed 
Commissioners,  respectively,  on  the  part  of  the  United  States  and 
Great  Britain  under  these  articles.  Article  VI  in  full,  with  the 
exception  of  a  provision  covering  the  possibility  of  a  disagreement 
which  did  not  occur,  is  as  follows: 

"Whereas  by  the  former  treaty  of  peace  that  portion  of  the  bound 
ary  of  the  United  States  from  the  point  where  the  forty-fifth  de 
gree  of  north  latitude  strikes  the  river  Iroquois  or  Cataraquy  to  the 
Lake  Superior,  was  declared  to  be  'along  the  middle  of  said  river 
into  Lake  Ontario,  through  the  middle  of  said  lake,  until  it  strikes 
the  communication  by  water  between  that  lake  and  Lake  Erie, 
thence  along  the  middle  of  said  communication  into  Lake  Erie, 
through  the  middle  of  said  lake  until  it  arrives  at  the  water  commu 
nication  into  the  Lake  Huron,  thence  through  the  middle  of  said  lake 
to  the  water  communication  between  that  lake  and  Lake  Superior;' 
and  whereas  doubts  have  arisen  what  was  the  middle  of  the  said 
river,  lakes  and  water  communications,  and  whether  certain  islands 
lying  in  the  same  were  within  the  dominions  of  His  Britannic  Maj 
esty  or  of  the  United  States:  In  order,  therefore,  finally  to  decide 
these  doubts,  they  shall  be  referred  to  two  Commissioners,  to  be 
appointed,  sworn  and  authorized  to  act  exactly  in  the  manner  di 
rected  with  respect  to  those  mentioned  in  the  next  preceding  article, 
unless  otherwise  specified  in  this  present  article.  The  said  Com 
missioners  shall  meet,  in  the  first  instance,  at  Albany,  in  the  State 
of  New  York,  and  shall  have  power  to  adjourn  to  such  other  place 
or  places  as  they  shall  think  fit.  The  said  Commissioners  shall,  by 
a  report  or  declaration,  under  their  hands  and  seals,  designate  the 
boundary  through  the  said  river,  lakes  and  water  communications, 
and  decide  to  which  of  the  two  contracting  parties  the  several  islands 
lying  within  the  said  rivers,  lakes  and  water  communications,  do 
respectively  belong,  in  conformity  with  the  true  intent  of  the  said 
treaty  of  one  thousand  seven  hundred  and  eighty-three.  And  both 
parties  agree  to  consider  such  designation  and  decision  as  final  and 
conclusive." 

The  Commissioners  arrived  at  an  agreement  with  respect  to  the 
entire  portion  of  the  line  included  in  Article  VI  and  the  ownership 
of  the  several  islands  lying  along  the  boundary  waters,  and  their 
joint  report  was  completed  and  signed  on  the  i8th  day  of  June, 
1822.  A  copy  of  their  report  in  full  is  printed  in  Treaties  in  Force, 
1904,  page  305. 

This  decision  describes  in  detail  the  course  of  the  line  from  the 
starting  point  at  St.  Regis  on  the  St.  Lawrence  River  to  the  head 
of  St.  Joseph's  Island  at  the  foot  of  the  Neebish  Rapids  in  the  water 
communication  between  Lake  Huron  and  Lake  Superior,  which  point 
is  indicated  by  the  Commissioners  as  the  "  termination  of  the  bound 
ary  directed  to  be  run  by  the  sixth  article  of  the  Treaty  of  Ghent." 

In  determining  the  location  of  the  line  with  respect  to  the  islands 


33 

lying  in  its  course,  the  Commissioners  adopted  the  invariable  rule 
that  the  boundary  should  be  a  water  line  throughout,  thus  avoiding 
the  division  of  any  island,  and  their  decision  declares  that — 

"all  the  islands  lying  in  the  rivers,  lakes  and  water  communications, 
between  the  before-described  boundary-line  and  the  adjacent  shores 
of  Upper  Canada,  do,  and  each  of  them  does,  belong  to  His  Britannic 
Majesty,  and  that  all  the  islands  lying  in  the  rivers,  lakes  and  water 
communications,  between  the  said  boundary-line  and  the  adjacent 
shores  of  the  United  States,  or  their  territories,  do,  and  each  of  them 
does,  belong  to  the  United  States  of  America,  in  conformity  with  the 
true  intent  of  the  second  article  of  the  said  treaty  of  1783,  and  of 
the  sixth  article  of  the  treaty  of  Ghent." 

In  addition  to  describing  the  line  the  decision  also  declares  that 
the  line — 

"is  more  clearly  indicated  on  a  series  of  maps  accompanying  this 
report,  exhibiting  correct  surveys  and  delineations  of  all  the  rivers, 
lakes,  water  communications  and  islands,  embraced  by  the  sixth 
article  of  the  treaty  of  Ghent,  by  a  black  line  shaded  on  the  British 
side  with  red,  and  on  the  American  side  with  blue;  and  each  sheet 
of  which  series  of  maps  is  identified  by  a  certificate,  subscribed  by 
the  Commissioners,  and  by  the  two  principal  surveyors  employed 
by  them." 

The  duplicate  original  set  of  this  series  of  maps  belonging  to  the 
United  States  is  on  file  in  the  Department  of  State  at  Washington. 
It  is  reported  that  the  other  duplicate  original  set  is  in  the  possession 
of  the  British  Government,  and  a  copy  made  by  the  Ordinance  Office 
i.n  London  is  on  file  at  Ottawa.  A  reproduction  of  these  maps  will 
be  found  in  volume  6  of  Moore's  International  Arbitrations.  The 
series  in  the  Department  of  State,  and  as  reproduced,  consists  of 
twenty-five  maps,  each  of  which,  with  the  exception  of  maps  num 
bered  ii  and  17,  is  signed  by  the  two  Commissioners  and  the  two 
principal  surveyors.  All  the  maps  of  this  series,  with  the  exception 
of  Nos.  ii,  17,  and  22,  bear  the  following  certification: 

"We  certify  this  to  be  a  true  map  of  part  of  the  boundary  desig 
nated  by  the  sixth  Article  of  the  Treaty  of  Ghent,  from  actual  survey 
by  order  of  the  Board." 

No  certification  appears  on  Map  No.  22,  which  shows  the  bound 
ary  through  Lake  St.  Clair,  but  it  apparently  was  signed  by  the 
Commissioners  and  the  surveyors. 

Map  No.  ii  shows  the  boundary  line  through  Lake  Ontario,  and 
is  indorsed : 

"Copied  from  the  survey  made  in  the  years  1815-16-17  by  Cap 
tain  H.  F.  W.  Owen  of  H.  B.  Majesty's  Royal  Navy." 

N   B 3 


34 

The  next  two  succeeding  maps  in  the  series,  which  are  signed 
and  certified  by  the  Commissioners,  show  the  line  at  each  end  of 
Lake  Ontario. 

Map  No.  17  shows  the  line  through  Lake  Erie  from  the  Niagara 
River  to  the  Detroit  River,  and  is  indorsed: 

"Lake  Erie.  That  part  west  of  Points  Pele  and  Sandusky,  in 
cluding  all  the  islands,  is  reduced  from  the  actual  surveys  made  by 
order  of  the  Commissioners.  The  other  parts  of  the  lake  (except  the 
entrance  into  the  Niagara  River)  are  reduced  from  such  printed  maps 
as  are  supposed  to  be  most  accurate." 

The  maps  next  preceding  and  following  No.  17  in  the  series  show 
the  line  as  it  enters  Lake  Erie  at  either  end,  and  both  of  these  maps 
are  signed  and  certified  by  the  Commissioners. 

It  appears,  therefore,  that  the  line  through  the  central  portion  of 
Lakes  Ontario  and  Erie  is  not  marked  on  charts  authenticated  by  the 
signatures  of  the  Commissioners,  and  in  view  of  the  statement  in 
their  report  that  "each  sheet  of  the  series  is  identified  by  a  certificate 
subscribed  by  the  Commissioners,"  etc.,  it  would  seem  that  these 
maps  should  not  be  regarded  as  properly  a  part  of  the  series. 

In  a  report  made  to  the  Secretary  of  State  by  Mr.  Adee,  the  Sec 
ond  Assistant  Secretary,  dated  February  21,  1896,  on  the  northern 
boundary  question,  the  following  statement  is  made  with  respect  to 
the  boundary  in  Lakes  Erie  and  Ontario: 

"The  original  chart  of  Lake  Erie,  like  that  of  Ontario,  is  un 
signed  by  the  Commissioners.  It  may  therefore  be  properly  said 
that  as  to  the  main  body  of  those  two  lakes  there  does  not  exist  a 
charting  of  the  boundary  having  the  force  and  value  of  a  treaty." 

From  the  foregoing  review  of  the  work  of  the  Commissioners 
under  the  sixth  article  of  the  Treaty  of  1814  it  appears  that  the  en 
tire  portion  of  the  boundary  included  in  that  article,  extending  from 
the  point  of  intersection  of  the  45th  parallel  with  the  St.  Lawrence 
River  to  the  water  communication  between  Lake  Huron  and  Lake 
Superior,  is  defined  and  described  in  detail  under  treaty  authority 
in  the  report  of  the  Commissioners,  and,  with  the  exception  of  the 
portion  through  the  main  body  of  Lakes  Ontario  and  Erie,  and  possi 
bly  also  Lake  St.  Clair,  is  surveyed  and  marked  upon  charts  having 
the  international  force  and  effect  of  a  treaty.  The  question  of  the 
accuracy  of  these  charts  and  the  actual  physical  demarcation  of 
the  boundary  as  located  by  them  remains  to  be  considered  and  is 
dealt  with  elsewhere  in  this  report. 

The  field  notes  of  the  surveys  of  this  Commission  do  not  appear 
to  have  been  filed  in  the  Department  of  State.  The  only  official 
records  of  the  work  of  this  Commission  to  be  found  there  are  a 


35 

manuscript  journal  of  the  proceedings  of  the  Commission  and  the 
final  award  of  the  Commissioners,  with  the  boundary  maps  forming 
part  of  it. 

A  complete  review  of  the  proceedings  of  the  Commissioners  un 
der  the  sixth  article  of  the  Treaty  of  Ghent  will  be  found  in  Moore's 
International  Arbitrations,  volume  i,  pages  162-170. 

THE  LINE  FROM  THE  FOOT  OF  NEEBISH  RAPIDS  TO  THE  MOST 
NORTHWESTERN  POINT  OF  THE  LAKE  OF  THE  WOODS,  INCLUDED 
IN  ARTICLE  VII  OF  THE  TREATY  OF  1814. 

Messrs.  Porter  and  Barclay  having  executed  the  duties  assigned 
to  them  as  Commissioners  under  the  sixth  article  of  the  Treaty  of 
Ghent,  and  having  concluded  their  proceedings  under  that  article 
by  their  report  of  June  18,  1822,  thereupon  proceeded  under  Article 
VII  of  that  treaty— 

"To  fix  and  determine  according  to  the  true  intent  of  the  said 
Treaty  of  Peace  of  one  thousand  seven  hundred  and  eighty  three, 
that  part  of  the  boundary  between  the  dominions  of  the  two  Powers, 
which  extends  from  the  water  communication  between  Lake  Huron 
and  Lake  Superior  to  the  most  North  Western  point  of  the  Lake  of 
the  Woods; — to  decide  to  which  of  the  two  Parties  the  several 
Islands  lying  in  the  Lake,  water  communications,  and  Rivers  form 
ing  the  said  boundary  do  respectively  belong  in  conformity  with  the 
true  intent  of  the  said  Treaty  of  Peace  of  one  thousand  seven  hun 
dred  and  eighty  three  and  to  cause  such  parts  of  the  said  boundary 
as  require  it  to  be  surveyed  and  marked." 

It  was  also  provided  that  the — 

"Commissioners  shall  by  a  report  or  declaration  under  their 
hands  and  seals  designate  the  boundary  aforesaid,  state  their  deci 
sion  on  the  points  thus  referred  to  them,  and  particularize  the  Lati 
tude  and  Longitude  of  the  most  North  Western  point  of  the  Lake 
of  the  Woods,  and  of  such  other  parts  of  the  said  boundary  as  they 
may  deem  proper.  And  both  parties  agree  to  consider  such  desig 
nation  and  decision  as  final  and  conclusive." 

As  above  stated,  the  Commissioners  under  the  sixth  article  had 
carried  the  line  to  a  point  in  the  St.  Mary's  River  just  below  the  foot 
of  Neebish  Rapids,  and  owing  to  the  entire  absence  of  any  reference 
to  the  continuation  of  the  line  through  the  connecting  waters  between 
Lakes  Huron  and  Superior  in  the  description  of  the  boundary  in  the 
treaties  of  1782  and  1783,  a  serious  question  presented  itself  as  to 
the  jurisdiction  of  the  Commissioners  under  Article  VII  to  continue 
the  line  through  the  St.  Mary's  River.  Under  Article  VI  the  Com 
missioners  were  empowered  to  designate  the  boundary  only  "to  the 
water  communication  between  that  lake  (Huron)  and  Lake  Superior, " 


36 

and  under  Article  VII  they  were  authorized  to  determine  the  bound 
ary  ^from  the  water  communication  between  Lake  Huron  and  Lake 
Superior,"  etc.,  and  they  were  required  to  designate  the  boundary 
"in  conformity  with,"  in  the  one  case,  and  "according  to,"  in  the 
other,  the  true  intent  of  the  Treaty  of  1783,  which,  as  above  stated, 
contained  no  reference  to  the  course  of  the  line  through  this  par- 
ticular_waterway.  The  omission  was  the  more  noticeable  because 
the  boundary  was  particularly  described  in  that  treaty  as  running 
along  the  middle  of  the  waterways  between  Lakes  Ontario  and  Erie, 
and  between  Lakes  Erie  and  Huron.  The  Commissioners  decided, 
however,  that  this  omission  was  a  mere  inadvertence,  and  they  inter 
preted  the  true  intent  of  the  treaty  to  be  that  the  line  was  to  con 
tinue  through  the  middle  of  this  water  communication  from  Lake 
Huron  to  Lake  Superior. 

Starting,  therefore,  from  the  point  where  they  terminated  the 
line  under  the  sixth  article,  they  proceeded  to  carry  the  boundary 
line  through  the  St.  Mary's  River,  but  at  the  very  outset  they 
encountered  a  divergence  of  views  as  to  its  location  around  St. 
George  or  Sugar  Island,  which  lies  almost  immediately  above  the 
starting  point.  Each  Commissioner  insisted,  for  reasons  which 
need  not  be  reviewed  here,  that  the  line  should  leave  this  island  on 
his  own  side  of  the  boundary.  Various  compromises  were  offered 
on  each  side,  but  they  were  unacceptable,  and,  although  some  adjust 
ment  of  the  question  would  probably  have  been  arrived  at  if  this  had 
been  the  only  point  in  dispute,  it  was  found  that  owing  to  irrecon 
cilable  differences  as  to  another  portion  of  the  line  a  final  disagree 
ment  was  inevitable,  and  it  was  decided  to  leave  this  question  open 
for  future  adjustment. 

The  Commissioners  agreed,  however,  on  the  course  of  the  bound 
ary  from  above  St.  George  or  Sugar  Island  through  the  Sault  Ste. 
Marie  and  across  Lake  Superior  to  a  point  north  of  Isle  Royal  in 
that  lake.  The  portion  of  the  boundary  thus  agreed  upon  was  laid 
down  by  them  on  maps  surveyed  under  their  direction,  and  was 
marked  by  a  black  line  shaded  on  the  British  side  with  red  and  on 
the  American  side  with  blue. 

Their  agreement  as  to  this  portion  of  the  line  was  entered  in  their 
journal  on  October  23,  1826,  as  follows: 

"That,  in  the  opinion  of  the  commissioners,  the  following  de 
scribed  line,  which  is  more  clearly  indicated  by  a  series  of  maps 
prepared  by  the  surveyors,  and  now  on  the  files  of  this  board,  by  a 
line  of  black  ink,  shaded  on  the  British  side  with  red,  and  on  the 
American  side  with  blue,  is,  so  far  as  the  same  extends,  the  true 
boundary  intended  by  the  treaties  of  1783  and  1814;  that  is  to  say, 
beginning  at  a  point  in  the  middle  of  St.  Mary's  river,  about  one 
mile  above  the  head  of  St.  George's  or  Sugar  Island,  and  running 


37 

thence,  westerly,  through  the  middle  of  said  river,  passing  between 
the  groups  of  islands  and  rocks  which  lie  on  the  north  side,  and  those 
which  lie  on  the  south  side  of  the  Sault  de  Ste.  Marie,  as  exhibited 
on  the  maps;  thence,  through  the  middle  of  said  river,  between 
points  Iroquois  and  Gros  Cap,  which  are  situated  on  the  opposite 
main  shores,  at  the  head  of  the  river  St.  Mary's,  and  at  the  entrance 
into  Lake  Superior ;  thence,  in  a  straight  line,  through  Lake  Superior, 
passing  a  little  to  the  south  of  isle  Cariboeuf,  to  a  point  in  said  lake, 
one  hundred  yards  to  the  north  and  east  of  a  small  island  named  on 
the  map  Chapeau,  and  lying  opposite  and  near  to  the  northeastern 
point  of  isle  Royale. " 

From  the  point  above  Isle  Royal  in  Lake  Superior  to  a  po^nt  at 
the  foot  of  Chaudiere  Falls  in  Lac  la  Pluie,  or  Rainy  Lake,  the 
Commissioners  were  unable  to  agree  as  to  the  location  of  the  line. 
The  treaty  descriptions  required  that  the  line;  after  passing  north 
of  Isles  Royal  and  Phelippeaux  in  Lake  Superior,  should  go  "to 
Long  Lake;  thence  through  the  middle  of  said  Long  Lake  to  the 
water  communication  between  it  and  the  Lake  of  the  Woods,  to 
the  said  Lake  of  the  Woods."  It  was  found  that  there  was  no  lake 
in  that  region  known  as  Long  Lake,  but  that  there  were  four  sepa 
rate  routes  which  the  line  might  follow,  any  one  of  which,  in  the 
absence  of  the  others,  would  have  been  regarded  as  sufficiently  ful 
filling  the  requirements  of  the  treaty  description.  The  northern 
most  of  these  was  through  the  River  Kamanistiquia,  for  which  the 
American  Commissioner  contended.  The  southernmost  one,  which 
the  British  Commissioner  selected,  was  through  Fond  du  Lac  or  St. 
Louis  River.  The  two  intermediate  ones  were  the  Grand  Portage 
route  and  the  Pigeon  River  route,  which  latter  was  a  few  miles  to 
the  north  of  the  other. 

From  the  foot  of  Chaudiere  Falls  to  the  most  northwestern  point 
of  the  Lake  of  the  Woods  the  Commissioners  agreed  upon  the  loca 
tion  of  the  line,  which  they  marked  as  before  on  the  maps  surveyed 
and  prepared  under  their  direction.  A  detailed  description  of  the 
portions  thus  agreed  upon  is  set  out  in  the  records  of  their  proceed 
ings  as  follows: 

"Beginning  at  a  point  in  Lac  La  Pluie,  close  north  of  island 
marked  No.  i,  lying  below  the  Chaudiere  falls  of  lake  Namecan; 
thence  down  this  channel,  between  the  islets  marked  No.  2  and  No. 
3;  thence,  down  the  middle  of  said  channel,  into  Lac  La  Pluie, 
westward  of  island  No.  4;  thence,  through  the  said  lake,  close  to 
the  south  point  of  island  No.  5  ;  thence,  through  the  middle  of  said 
lake,  north  of  island  No.  6,  and  south  of  island  No.  7;  thence 
through  the  middle  of  said  lake,  to  the  north  of  islet  No.  8,  and 
south  of  islands  No.  9,  No.  10,  No.  n,  and  between  islands  No.  12 
and  No.  13;  thence,  south  of  islands  No.  14  and  No.  15;  thence, 
through  the  middle  of  said  lake,  north  of  a  group  of  islands,  No. 
16;  thence,  south  of  a  group  of  rocks,  No.  17;  thence,  south  of  a 
group  of  islets,  No.  18;  thence,  north  of  an  islet,  No.  19;  thence, 


38 

through  the  middle  of  said  lake,  to  the  south  of  island  No.  20,  and 
all  its  contiguous  islets;  thence,  south  of  island  No.  21,  and  mid 
way  between  islands  No.  22  and  No.  23;  thence,  southwest  of  island 
No.  24;  thence,  north  of  island  No.  25;  thence,  through  the  middle 
of  said  lake,  to  its  sortie,  which  is  the  head  of  the  Riviere  La  Pluie; 
thence,  down  the  middle  of  said  river,  to  the  Chaudiere  falls,  and 
having  a  portage  on  each  side;  thence,  down  the  middle  of  said  falls 
and  river,  passing  close  south  of  islet  No.  26;  thence,  down  the 
middle  of  said  Riviere  La  Pluie,  and  passing  north  of  islands,  No. 
27,  No.  28,  No.  29  and  No.  30;  thence,  down  the  middle  of  said  river, 
passing  west  of  island  No.  31;  thence,  east  of  island  No.  32;  thence, 
down  the  middle  of  said  river,  and  of  the  Manitou  rapid,  and  passing 
south/ of  No.  33 ;  thence,  down  the  middle  of  said  river,  and  the  Long 
Sault  rapid,  north  of  island  No.  34,  and  south  of  islets  No.  35,  No. 
36,  and  No.  37  ;  thence,  down  the  middle  of  said  river,  passing  south  of 
island  No.  38y/thence,  down  the  middle  of  said  river,  to  its  entrance 
between  the  main  land  and  Great  Sand  Island,  into  the  Lake  of  the 
Woods;  thence,  by  a  direct  line  to  a  point  in  s'aid  lake,  one  hundred 
yards  east  of  the  most  eastern  point  of  island  No.  i ;  thence,  north 
westward,  passing  south  of  islands  No.  2  and  No.  3;  thence,  north 
westward  of  island  No.  4,  and  southwestward  of  islands  No.  5  and 
No.  6;  thence,  northward  of  island  No.  7,  and  southward  of  islands 
No.  8,  No.  9,  No.  10,  and  No.  n  ;  thence,  through  the  middle  of  the 
waters  of  this  bay,  to  the  northwest  extremity  of  the  same,  being 
the  most  northwestern  point  of  the  Lake  of  the  Woods^  And  from 
a  monument  erected  in  this  bay,  on  the  nearest  firm  ground  to  the 
above  northwest  extremity  of  said  bay,  the  courses  and  distances 
are  as  follows,  viz:  ist.  N.,  56°  W.,  156.5%  feet;  2d.  N.,  6°  W., 
861%  feet;  3d.  N.,  28°  W.,  615.4  feet;  4th.  N.,  27°  10'  W.,  495.4 
feet;  5th.  N.,  5°  10'  £.,  1,322%  feet;  6th.  N.,  7°  45'  W.,  493  feet; 
the  variation  being  12°  east.  The  termination  of  this  6th  or  last 
course  and  distance,  being  the  above  said  most  northwestern  point 
of  the  Lake  of  the  Woods,  as  designated  by  the  7th  article  of  the 
treaty  of  Ghent ;  and  being  in  the  latitude  forty-nine  degrees  twenty- 
three  minutes  and  fifty-five  seconds  north  of  the  equator;  and  in 
longitude,  ninety-five  degrees  fourteen  minutes  and  thirty-eight 
seconds  west  from  the  observatory  at  Greenwich." 

Having  disagreed,  as  above  described,  on  certain  portions  of  the 
line,  the  Commissioners  did  not  unite  in  a  joint  report,  but  each 
filed  a  separate  report,  and  in  such  reports  will  be  found  detailed 
descriptions  of  the  portions  of  the  line  proposed  by  them  upon  which 
they  did  not  agree  and  the  grounds  upon  which  they  based  their 
respective  positions.  (H.  R.  Ex.  Doc.  No.  451,  25th  Cong.,  2dsess.) 

The  Commissioners  had  their  final  meeting  on  December  24, 
1827,  and,  after  exchanging  their  reports,  adjourned  sine  die.  *, 

The  charts  prepared  by  direction  of  the  Commissioners  under 
Article  VII  of  this  treaty  comprise  two  separate  sets,  one  of  which 
consists  of  twenty-six  charts  numbered  I  to  XXVI,  inclusive,  each 
one  of  which  is  certified  to  be — 

"A  true  map  of  part  of  the  survey  under  the  seventh  article  of 
the  Treaty  of  Ghent,  made  by  order  of  the  Commissioners." 


39 

and  is  signed  by  the  Commissioners,  Barclay  and  Porter.  On  this 
set  the  boundary  line  is  marked,  so  far  as  the  Commissioners  agreed 
upon  it,  by  a  black  line  shaded  red  on  the  British  side  and  blue  on 
the  American  side,  and  the  charts  showing  the  line  so  agreed  upon 
were  later  adopted  as  boundary  maps  under  the  Webster-Ashburton 
Treaty  of  1842.  With  this  series  there  are  two  additional  unnumbered 
charts,  which  are  indorsed  as  copies  of  original  surveys  prepared 
and  filed — 

"to  exhibit  the  course  of  a  certain  line  described  by  the  British 
Commissioner  for  a  proposed  boundary,  as  set  forth  in  the  journal 
of  the  Board  under  date  of  the  23rd  day  of  October,  1826." 

These  charts  are  attached  as  subcharts  to  Charts  Nos.  XIV  and 
XV  of  this  series  and  bear  the  signatures  of  the  Commissioners,  but 
the  line  referred  to  in  the  indorsement  as  proposed  by  the  British 
Commissioner  appears  only  on- the  latter  one,  which  shows  Lac  la 
Croix  on  a  larger  scale  than  in  the  main  Chart  No.  XV,  to  which  it 
is  annexed.  The  proposed  line  shown  on  this  subchart  was  after 
wards  adopted  by  Webster  and  Ashburton. 

The  other  series  consists  of  a  set  of  charts  numbered  i  to  8, 
inclusive,  each  of  which  is  certified  to  be — 

"A  true  map  of  part  of  the  survey  under  the  seventh  article  of 
the  Treaty  of  Ghent,  made  by  order  of  the  Commissioners." 

and  is  signed  by  Commissioners  Porter  and  Barclay. 

The  first  two  charts  of  this  set  cover  the  section  from  Neebish 
Rapids  to  Lake  Superior,  and  the  rest  cover  the  section  from  Isle 
Royal  in  Lake  Superior  to  and  through  the  water  communications 
to  the  westward  of  Lake  Superior,  as  far  as  Lake  Namecan  imme 
diately  below  Chaudiere  Falls.  The  line  agreed  upon  by  Webster 
and  Ashburton  was  afterwards  marked  by  them  on  Chart  No.  i  of  this 
set,  which  was  also  signed  by  them  and  now  forms  part  of  the  set 
of  boundary  maps  having  an  authoritative  value  under  the  Webster- 
Ashburton  Treaty. 

Chart  No.  2  of  this  set  shows  the  line  through  the  St.  Mary's 
River,  so  far  as  agreed  upon  by  the  Commissioners,  and  consequently 
is  one  of  the  boundary  maps  adopted  under  the  Webster-Ashburton 
Treaty. 

On  Charts  Nos.  3  and  6  of  this  set  a  line  is  shown  at  points  where 
the  Commissioners  disagreed,  and  as  these  particular  charts  were 
not  afterwards  adopted  by  Webster  and  Ashburton  in  the  final 
adjustment  of  the  boundary,  the  line  as  shown  on  them  has  no 
authoritative  value.  No  line  is  shown  on  the  remaining  charts  of 
this  series. 


40 

From  the  foregoing  review  of  the  work  of  the  Commissioners 
under  the  seventh  article  of  the  Treaty  of  1814  it  appears  that  the 
entire  portion  of  the  boundary  included  in  that  article,  extending 
from  the  point  in  the  St.  Mary's  River  between  Lakes  Huron  and 
Superior,  where  the  line  under  the  sixth  article  terminated,  to  the 
most  northwestern  point  of  the  Lake  of  the  Woods,  was  surveyed 
and  charted  under  the  direction  of  the  Commissioners;  that  the  por 
tions  of  this  line  upon  which  they  agreed — viz,  (i)  from  a  point  above 
St.  George  or  Sugar  Island  in  the  St.  Mary's  River  to  a  point  just 
north  of  Isle  Royal  in  Lake  Superior,  and  (2)  from  a  point  at  the 
foot  of  Chaudiere  Falls  in  Rainy  Lake  to  the  most  nortwestern  point 
of  the  Lake  of  the  Woods — were  marked  by  them  upon  the  charts  of 
the  Commission,  and  were  denned  and  described  in  detail  in  the 
records  of  the  proceedings  of  the  Commission  ;  but  the  Commission 
ers  having  failed  to  agree  with  respect  to  certain  portions  of  the  line, 
and  no  joint  report  having  been  rendered  by  them,  their  decision 
as  to  the  location  of  the  portions  agreed  upon  was  not  regarded  as 
final  and  conclusive  under  the  terms  of  Article  VII  of  the  treaty, 
which  provided  that  in  the  event  of  the  Commissioners  differing 
their  reports  should  be  referred  to  some  friendly  sovereign  or  state 
to  decide  on  such  differences. 

A  complete  report  of  the  proceedings  of  the  Commissioners  under 
the  seventh  article  of  the  Treaty  of  Ghent  will  be  found  in  Moore's 
International  Arbitrations,  volume  i,  pages  171-191. 

THE   SETTLEMENT    OF   THIS    BOUNDARY    BY   THE   WEBSTER- 
ASHBURTON    TREATY   OF    1842. 

Notwithstanding  the  provision  in  Article  VII  of  the  Treaty  of 
1814  for  arbitration  in  case  of  a  disagreement  by  the  Commissioners, 
no  action  was  taken  by  either  Government  in  that  direction.  The 
northeastern  boundary  question,  which  at  that  time  was  of  much 
greater  importance  than  the  northwestern  boundary  question,  had 
recently  been  referred  to  arbitration  and  the  decision  rendered  on 
January  10,  1831,  had  proved  unsatisfactory  to  both  sides  and  was 
not  accepted  by  either. 

With  respect  to  the  boundary  included  in  Article  VII  of  the 
Treaty  of  1814,  apparently  no  discussion  took  place  between  the 
two  Governments,  after  the  adjournment  of  the  Commissioners  in 
1827,  until  1839,  in  which  year,  and  in  the  following  year,  this 
boundary  question  formed  the  subject  of  diplomatic  correspondence, 
which  finally  led  to  the  negotiations  between  Webster  and  Ashbur- 
ton,  resulting  in  the  settlement  of  this  and  other  portions  of  the 
northern  boundary  by  the  Treaty  of  1842. 


In  Article  II  of  that  treaty  the  portion  of  the  boundary  included 
in  Article  VII  of  the  Treaty  of  Ghent  is  agreed  upon  as  follows: 

"  It  is  moreover  agreed,  that  from  the  place  where  the  joint  Com 
missioners  terminated  their  labors  under  the  sixth  article  of  the 
treaty  of  Ghent,  to  wit:  at  a  point  in  the  Neebish  Channel,  near 
Muddy  Lake,  the  line  shall  run  into  and  along  the  ship  channel  be 
tween  Saint  Joseph  and  St.  Tammany  Islands,  to  the  division  of  the 
channel  at  or  near  the  head  of  St.  Joseph's  Island;  thence,  turning 
eastwardly  and  northwardly,  around  the  lower  end  of  St.  George's 
or  Sugar  Island,  and  following  the  middle  of  the  channel  which 
divides  St.  George's  from  St.  Joseph's  Island;  thence,  up  the  east 
Neebish  channel,  nearest  to  St.  George's  Island,  through  the  middle 
of  Lake  George; — thence  west  of  Jonas'  Island,  into  St.  Mary's 
River  to  a  point  in  the  middle  of  that  river,  about  one  mile  above 
St.  George's  or  Sugar  Island,  so  as  to  appropriate  and  assign  the 
said  Island  to  the  United  States;  thence,  adopting  the  line  traced 
on  the  maps  by  the  Commissioners,  thro'  the  river  St.  Mary  and 
Lake  Superior,  to  a  point  north  of  He  Royale  in  said  Lake,  one 
hundred  yards  to  the  north  and  east  of  lie  Chapeau,  which  last 
mentioned  Island  lies  near  the  northeastern  point  of  He  Royale, 
where  the  line  marked  by  the  Commissioners  terminates;  and  from 
the  last  mentioned  point,  southwesterly,  through  the  middle  of  the 
Sound  between  He  Royale  and  the  northwestern  mainland,  to  the 
mouth  of  Pigeon  river,  and  up  the  said  river  to,  and  through, 
the  north  and  south  Fowl  Lakes,  to  the  Lakes  of  the  height  of  land 
between  Lake  Superior  and  the  Lake  of  the  Woods;  thence,  along 
the  water-communication  to  Lake  Saisaginaga,  and  through  that 
Lake;  thence,  to  and  through  Cypress  Lake,  Lac  du  Bois  Blanc,  Lac 
la  Croix,  Little  Vermilion  Lake,  and  Lake  Namecan,  and  through 
the  several  smaller  lakes,  straits,  or  streams,  connecting  the  lakes 
here  mentioned,  to  that  point  in  Lac  la  Pluie,  or  Rainy  Lake,  at 
the  Chaudiere  Falls, /from  which  the  Commissioners  traced  the  line 
to  the  most  northwestern  point  of  the  Lake  of  the  Woods — thence, 
along  the  said  line,  to  the  said  most  northwestern  point,  being 
in  latitude  49°  23'  55"  north,  and  in  longitude  95°  14'  38"  west  from 
the  Observatory  at  Greenwich;  thence,  according  to  existing  treat 
ies,  due  south  to  its  intersection  with  the  49th  parallel  of  north  lati 
tude,  and  along  that  parallel  to  the  Rocky  Mountains.  It  being 
understood  that  all  the  water-communications  and  all  the  usual  por 
tages  along  the  line  from  Lake  Superior  to  the  Lake  of  the  Woods; 
and  also  Grand  Portage,  from  the  shore  of  Lake  Superior  to  the 
Pigeon  river,  as  now  actually  used,  shall  be  free  and  open  to  the  use 
of  the  citizens  and  subjects  of  both  countries." 

It  will  be  observed  that  by  this  agreement  so  much  of  the  line 
as  the  Commissioners  under  Article  VII  of  the  Treaty  of  1814  had 
agreed  upon  was  adopted  as  the  boundary,  and  that  their  disagree 
ment  as  to  the  location  of  the  line  around  St.  George's  or  Sugar 
Island  was  settled  by  running  the  line  there  "so  as  to  appropriate 
and  assign  the  said  island  to  the  United  States. "  The  other  point  of 


42 

disagreement  between  the  Commissioners,  involving  the  location 
of  the  line  from  Isle  Royal  in  Lake  Superior  to  Chaudiere  Falls  in 
Rainy  Lake,  was  settled  by  a  compromise,  avoiding  the  extreme 
northerly  course  proposed  by  the  American  Commissioner  and  the 
extreme  southerly  course  proposed  by  the  British  Commissioner, 
and  instead  carrying  the  line  through  the  Pigeon  River  route,  which 
lay  about  midway  between.  The  latitude  and  longitude  of  the  most 
northwestern  point  of  the  Lake  of  the  Woods  as  fixed  by  the  Com 
missioners  was  accepted  under  this  agreement,  and  has  since  been 
monumented. 

In  addition  to  adopting  the  portions  of  the  line  agreed  upon  by 
the  Commissioners  under  Article  VII  of  the  Treaty  of  Ghent,  thus 
giving  the  charts  upon  which  the  line  had  been  delineated  by  those 
Commissioners  a  treaty  value,  the  remaining  portions  of  the  line 
agreed  upon  by  Webster  and  Ashburton  were  marked  in  ink  by  them 
on  the  original  charts  prepared  by  those  Commissioners,  covering 
such  portions  of  the  boundary.  Each  of  the  charts  upon  which  the 
line  was  so  marked  was  indorsed,  apparently  in  Webster's  hand 
writing:  "Map  of  boundary  agreed  to  by  treaty,  August  9,  1842," 
which  indorsement  was  signed  by  both  Webster  and  Ashburton,  and 
along  the  line  so  marked  by  them  on  such  charts  was  written: 
"Boundary  under  the  Treaty  of  Washington." 

In  1869  copies  of  charts  Nos.  XIII,  XIV  (with  subchart  attached), 
XV  (with  subchart  attached),  XVI,  and  XVIII  of  this  series,  certified 
to  be  correct  copies  by  Col.  Henry  James,  of  the  Royal  Engineers, 
under  date  of  February  5,  1869,  were  obtained  from  the  British 
Government  for  the  purpose  of  replacing  the  corresponding  charts 
which  were  then  missing  from  the  American  set.  These  certified 
copies,  however,  as  has  since  appeared,  were  not  reproductions  of 
the  British  original  treaty  charts,  but  of  another  set  of  charts  on  file 
in  the  Foreign  Office  marked  "incomplete  set,"  the  charts  compris 
ing  which  are  apparently  exact  duplicates  of  the  American  treaty 
charts  except  that  the  boundary  line  as  laid  down  in  1842  by  Web 
ster  and  Ashburton  is  not  marked  on  them  and  they  do  not  bear 
their  signatures.  The  certified  copies  from  this  set,  therefore,  do 
not  show  the  boundary  line  and  have  no  treaty  value. 

When  the  question  of  the  demarcation  of  this  portion  of  the 
boundary  came  up  for  consideration  before  the  Joint  High  Com 
mission  in  1898  Sir  Richard, Cartwright,  one  of  the  Canadian  Com 
missioners,  produced  a  series  of  maps  indicating  a  continuous 
boundary  line,  marked  in  black,  through  the  connecting  waters  all 
the  way  from  Lake  Superior  to  Chaudiere  Falls.  These  maps,  he 
stated,  had  been  copied  from  the  originals  in  London  by  the  Ordi 
nance  Office  there.  On  them  was  shown  the  indorsement:  "Map  of 


43 

Boundary.  Agreed  to  by  Treaty  August  9,  1842.  (Signed)  Ash- 
burton.  Daniel  Webster."  The  signatures  of  Barclay  and  Porter, 
Commissioners  under  the  Treaty  of  Ghent,  were  also  shown.  Mr. 
Kasson,  who  was  the  American  member  of  the  Joint  High  Com- 
missi'on  subcommittee  on  the  boundary  question,  reported  the  ex 
istence  of  these  maps  to  the  Department  of  State  in  a  letter  to  Mr. 
Adee,  dated  October  5,  1898,  in  which  he  says: 

"I  am  forced  to  believe  that  duplicates  of  these  maps,  with  the 
original  certificates  of  the  negotiators  of  the  Treaty  of  1842,  must 
exist  somewhere  in  the  Department  of  State." 

Prior  to  that  time  for  a  number  of  years  the  fact  that  Webster 
and  Ashburton  had  marked  on  maps  any  portion  of  the  line  west  of 
Lake  Superior  had  been  lost  sight  of  in  the  absence  of  any  maps 
showing  this  portion  of  the  line  in  the  series  filed  with  the  Treaty  of 
1842  in  the  Department  of  State,  and  it  had  been  assumed  that  no 
such  maps  existed.  (See  Mr.  Adee's  report  of  February  21,  1896, 
above  referred  to.) 

Upon  Mr.  Kasson's  report,  however,  a  search  was  instituted  and 
three  of  the  missing  maps — Nos.  XIII,  XIV  (with  an  unnumbered  sub- 
map  attached),  and  XV  (also  with  an  unnumbered  submap  attached) 
of  the  series — were  discovered  in  the  Library  of  Congress,  but  the 
other  two  missing  originals  of  the  series  (Nos.  XVI  and  XVIII) 
were  not  with  them  and  have  not  yet  been  found. 

The  boundary  as  shown  on  the  original  charts  now  on  file  in  the 
Department  of  State  is  incomplete  west  of  Lake  Superior,  from  Lac 
la  Croix  to  the  Chaudiere  Falls  in  Rainy  Lake. 

An  examination  of  the  original  charts  filed  with  this  treaty  in  the 
British  Foreign  Office  was  made  there  in  August,  1906,  and  with 
the  assistance  of  Mr.  Brant,  the  Foreign  Office  Librarian,  they  were 
compared  in  detail  with  the  reproductions  of  the  United  States' 
original  set  as  published  in  the  sixth  volume  of  Moore  on  Interna 
tional  Arbitrations.  The  examination  disclosed  the  fact  that  the 
British  set  is  actually  the  original  set  prepared  and  filed  by  Messrs. 
Porter  and  Barclay,  the  Commissioners  under  Article  VII  of  the 
Treaty  of  Ghent,  whereas  the  charts  of  the  American  set,  although 
signed  by  Messrs.  Porter  and  Barclay,  are  not  identical  in  all  respects 
with  the  original  set,  and  bear  a  certificate  to  the  effect  that  they  are 
true  copies  of  the  originals,  which  certificate  does  not  appear  on  the 
British  set.  The  form  of  the  certificate  referred  to  will  be  found  in 
the  reproductions  of  the  American  set  as  printed  in  the  sixth  volume 
of  Moore's  Arbitrations,  above  referred  to.  The  corresponding 
charts  of  both  of  these  sets  are  signed  by  Webster  and  Ashburton 


44 

and  the  boundary  line  as  marked  on  certain  of  the  charts  by  them, 
and  as  adopted  by  them  on  the  others  where  the  line  was  agreed 
upon  by  Messrs.  Porter  and  Barclay,  corresponds  in  all  essential 
particulars.  The  chief  difference  between  the  two  sets  is  that  on 
some  of  the  British  set  triangulation  lines  are  shown  and  dist'ances 
given  and  a  scale  of  yards  and  geographical  and  statute  miles  ap 
pears,  and  on  almost  every  chart  details,  such  as  the  names  of  points 
and  islands,  are  given,  none  of  which  features  appear  on  the  corre 
sponding  charts  of  the  American  set. 

Inasmuch  as  the  boundary  was  marked  by  Webster  and  Ashbur- 
ton  on  the  two  British  original  charts,  of  which  the  corresponding 
copies  are  still  missing  in  the  American  set,  it  may  safely  be  assumed 
that  the  boundary  line  was  marked  on  them  also.  It  appears,  there 
fore,  that  the  series  of  charts  adopted  by  and  forming  part  of  the 
Treaty  of  1842  show  a  complete  delineation  of  the  boundary  as 
agreed  upon  in  that  treaty,  covering  the  entire  distance  included 
under  the  seventh  article  of  the  Treaty  of  1814.  It  is  to  be  observed, 
however,  that  the  boundary  as  agreed  upon  in  the  Treaty  of  1842 
was  a  water  line  throughout,  so  far  as  possible,  and  it  is  understood 
that  its  course  is  not  shown  on  the  charts  wherever  it  is  necessary 
for  the  line  to  cross  the  land,  as  in  the  case  of  the  height  of  land 
referred  to  in  Article  II  and  across  intervening  portages  between 
lakes  having  no  water  communication,  which  is  reported  to  be  the 
case  in  three  instances. 

Since  the  surveys  made  under  the  seventh  article  of  the  Treaty 
of  1814  the  line  from  Pigeon  River  to  the  Lake  of  the  Woods  has 
never  been  surveyed  or  charted  by  joint  action  of  the  two  Govern 
ments,  and  the  actual  location  of  the  boundary  has  never  been 
marked  by  monuments.  (Note  of  January  29,  1901,  from  Secretary 
Hay  to  Lord  Pauncefote.)  A  more  complete  delineation  of  this  line, 
therefore,  is  necessary,  both  on  maps  and  along  the  course  of  the 
boundary  itself,  and  in  order  to  perfect  this  portion  of  the  boundary 
provision  should  be  made  for  jointly  surveying  and  monumenting 
the  line  throughout  its  entire  course. 

In  a  report  made  by  Hamilton  Fish  when  Secretary  of  State, 
dated  February  23,  1877,  it  is  stated  that  at  that  time  the  line  from 
the  Atlantic  coast  to  the  northwest  angle  of  the  Lake  of  the  Woods 
had  been  surveyed  and  adjusted.  (S.  Ex.  Doc.  41,  44th  Cong.,  2d 
sess.)  This  statement  was  erroneous  so  far  as  it  concerns  the  line 
from  Pigeon  River  to  the  Lake  of  the  Woods,  with  respect  to  which 
the  situation  is  as  above  stated.  (H.  Rept.  1310,  54th  Cong.,  ist 
sess. 


45 


SEPARATE  SURVEY  BY  CANADA,  1896. 

A  statement  is  quoted  in  Moore's  International  Arbitrations,  vol 
ume  i;  page  236,  with  the  apparent  authority  of  the  Minnesota 
Historical  Society,  to  the  effect  that — 

"The  Canadian  Government  has  not  waited  for  a  joint  survey 
to  inform  itself  concerning  the  actual  condition  of  the  boundary, 
but  has  quietly  sent  out  a  party  of  surveyors,  at  its  own  expense,  to 
trace  the  line  from  Pigeon  Point  to  the  Lake  of  the  Woods.  The 
work  was  ordered  by  the  Commissioner  on  International  Bounda 
ries,  and  is  in  charge  of  A.  J.  Brabazon." 

A  report,  dated  February  i,  1897,  was  made  by  Mr.  A.  J.  Braba 
zon  to  W.  F.  King,  Canadian  Chief  Astronomer,  on  the  international 
boundary  from  Pigeon  River  to  the  Chaudiere  Falls,  a  copy  of  which 
has  been  procured  and  is  now  on  file  in  the  Department  of  State. 
In  this  report  he  states  as  a  result  of  his  examination  that  all  the 
details  connected  with  this  portion  of  the  boundary  are  clearly  set 
forth  in  the  report  of  the  Commissioners  under  the  seventh  article 
of  the  Treaty  of  1814,  and  are  shown  on  the  maps  of  1842  signed  by 
Webster  and  Ashburton,  except  with  respect  to  the  description  of 
the  portages  along  this  portion  of  the  boundary,  which  he  supplies 
in  detail  in  this  report.  In  regard  to  these  portages  he  says: 

"Of  the  thirty-one  portages  described  in  the  report  of  the  Com 
missioners  under  Article  VII  of  the  Treaty  of  Ghent,  as  proposed  by 
the  British  Commissioner  to  be  parts  of  the  boundary  between 
North  Fowl  and  Rainy  lakes,  four  cross  islands,  three  are  between 
lakes  unconnected  by  water,  one  crosses  a  very  indefinite  creek,  and 
twenty-three  are  along  unnavigable  portions  of  streams.  It  will  be 
seen  that  of  these  streams  fourteen  will  be  on  the  Canadian  and  nine 
on  the  American  side  of  the  boundary." 

He  then  proceeds  to  designate  the  side  of  the  boundary  upon 
which  the  respective  streams  referred  to  would  be  placed,  accord 
ing  to  his  understanding  of  its  location. 

There  is  no  warrant  in  the  description  of  the  boundary  as  agreed 
upon  in  the  treaty  or  in  the  course  as  indicated  by  the  line  drawn 
by  Webster  and  Ashburton  on  the  charts,  so  far  as  appears,  for  the 
statement  that  the  boundary  should  follow  the  portages  between 
lakes  which  are  connected  by  water  communications.  In  the  cases 
of  the  height  of  land  referred  to  in  the  treaty,  and  of  the  three  por 
tages  between  lakes  unconnected  by  water,  the  boundary  must  nec 
essarily  take  a  land  course.  But  to  follow  portages  where  water 
communications  exist  would  be  inconsistent  not  only  with  the  rule 
that  the  line  should  be  invariably  a  water  line,  which,  as  above 


46 

shown,  was  adopted  by  Commissioners  Porter  and  Barclay  with 
respect  to  the  boundary  under  the  sixth  article,  but  also  with  the 
evident  intent  of  Webster  and  Ashburton  that  the  line  agreed  upon 
by  them  should  be  a  water  line,  as  indicated  by  the  language  used 
in  describing  the  line  in  Article  II  of  this  treaty.  This  part  of  the 
line  is  described  as  running — 

"to  the  mouth  of  Pigeon  river,  and  up  the  said  river  to  and 
through,  the  north  and  south  Fowl  Lakes,  to  the  Lakes  of  the 
height  of  land  between  Lake  Superior  and  the  Lake  of  the  Woods; 
thence,  along  the  water-communication  to  Lake  Saisaginaga,  and 
through  that  Lake;  thence,  to  and  through  Cypress  Lake,  Lac  du 
Bois  Blanc,  Lac  la  Croix,  Little  Vermilion  Lake,  and  Lake  Name- 
can,  and  through  the  several  smaller  lakes,  straits,  or  streams,  con 
necting  the  lakes  here  mentioned" ,  etc. 

In  the  absence  of  the  missing  original  charts  upon  which  the 
Webster  and  Ashburton  line  is  supposed  to  be  drawn,  it  is  impossible 
to  tell  just  what  that  line  on  those  charts  will  show  in  this  respect, 
but  without  positive  evidence  to  the  contrary  it  would  be  unsafe  to 
assume  that  the  line  departed  from  the  waterways  in  any  instance 
where  there  was  a  waterway  which  it  might  follow. 

Brabazon's  report  indicates  that  the  line  described  by  him  is  the 
one  proposed  by  the  British  Commissioner  under  Article  VII  of 
the  Treaty  of  Ghent,  and  he  assumes  that  this  line  was  adopted  by 
Webster  and  Ashburton,  which,  however,  is  not  shown  to  be  the 
case,  and  this  conclusion  is  not  admissible  as  the  matter  now  stands. 
It  is  true  that  following  the  description  of  the  boundary  agreed 
upon  in  the  Webster-Ashburton  Treaty  provision  is  made  in  Article 
II  as  follows: 

"It  being  understood  that  all  the  water-communications  and  all 
the  usual  portages  along  the  line  from  Lake  Superior  to  the  Lake 
of  the  Woods;  and  also  Grand  Portage,  from  the  shore  of  Lake  Su 
perior  to  the  Pigeon  river,  as  now  actually  used,  shall  be  free  and 
open  to  the  use  of  the  citizens  and  subjects  of  both  countries." 

No  reference,  however,  is  made  to  these  portages  as  forming 
part  of  the  boundary.  The  provision  applies  equally  to  the  water 
communications  whether  part  of  the  boundary  or  not,  thus  destroy 
ing  any  such  inference. 

In  Brabazon's  report  it  is  also  stated  that  he  is  satisfied  from  the 
examination  made  that — 

"When  an  accurate  survey  of  the  lakes  is  made  the  positions  and 
extent  of  many  of  the  islands,  bays,  and  channels  will  be  found  to 
differ  considerably  from  those  shown  on  the  maps  of  1842;  yet,  the 
boundary  line  as  laid  down  on  those  maps  is  very  easily  followed." 


47 

He  further  states  in  his  report,  as  a  matter  of  interest  in  con 
nection  with  the  question  of  monumenting  this  line: 

"  I  may  add  that  the  lakes  appear  generally  shallow,  so  that  it 
will  be  possible  in  most  cases  to  mark  the  boundary  if  marks  are 
required  in  the  water.  The  shores  also  are  generally  well  adapted 
for  defining  the  line  by  range  marks." 

A  copy  of  his  maps  referred  to  in,  and  accompanying  the  origi 
nal  report,  have  not  been  procured. 

FREE    AND    OPEN    NAVIGATION    OF    CERTAIN    PORTIONS    OF    THE 
BOUNDARY  WATERS  PROVIDED  FOR  IN  THE  TREATY  OF  1842. 

Before  passing  from  the  Webster-Ashburton  Treaty,  and  in  con 
nection  with  the  provision  therein  just  above  referred  to,  making  all 
the  usual  portages  and  waterways  along  the  line  from  Lake  Superior 
to  the  Lake  of  the  Woods  "free  and  open  to  the  use  of  the  citizens 
and  subjects  of  both  countries,"  attention  is  called  to  a  similar  pro 
vision  in  Article  VII  of  that  treaty  with  respect  to  the  navigation  of 
certain  portions  of  the  contiguous  boundary  waters.  Article  VII  is 
as  follows: 

"It  is  further  agreed  that  the  channels  in  the  river  St.  Lawrence 
on  both  sides  of  the  Long  Sault  Islands  and  of  Barnhart  Island;  the 
channels  in  the  river  Detroit  on  both  sides  of  the  Island  Bois  Blanc, 
and  between  that  Island  and  both  the  American  and  Canadian 
shores;  and  all  the  several  channels  and  passages  between  the  vari 
ous  Islands  lying  near  the  junction  of  the  river  St.  Clair  with  the 
lake  of  that  name,  shall  be  equally  free  and  open  to  the  ships,  vessels, 
and  boats  of  both  Parties." 

With  respect  to  this  provision  it  is  important  to  note  that  in  the 
course  of  the  discussions  by  Messrs.  Porter  and  Barclay,  as  Commis 
sioners  under  the  sixth  article  of  the  Treaty  of  1814,  they  considered 
the  question  of  including  in  their  final  award  a — 

"declaration  to  the  effect  that  they  had  acted  on  the  principle  that 
the  navigation  of  all  the  lakes,  rivers,  and  water  communications 
through  which  by  the  treaty  of  1783  the  boundary  was  to  pass, 
should  continue  open  and  free  to  the  citizens  and  subjects  of  the 
two  powers,  unaffected  by  the  course  of  the  line  established  by  the 
award."  (Moore  on  International  Arbitrations,  vol.  i,  p.  166.) 

The  purpose  of  this  proposed  declaration  was  stated  to  be  not 
only  to  facilitate  the  conclusion  of  an  agreement,  but  also  to  prevent 
future  difficulties  as  to  the  right  of  navigation.  The  question  was 
submitted  to  the  two  Governments  and  was  acceded  to  by  the  Presi 
dent  of  the  United  States,  but  the  British  minister  at  Washington 
declined  to  sanction  it  on  the  part  of  his  Government,  on  the  ground 


48 

that  such  a  declaration  would  tend  to  cast  doubt  on  what  his  Gov 
ernment  held  to  be  a  matter  of  right.  It  appears,  however,  from 
this  provision  in  the  Webster-Ashburton  Treaty  that  ultimately  both 
Governments  came  to  the  conclusion  that  it  was  desirable  to  make  a 
specific  provision  for  the  use  of  the  waters  at  the  particular  points 
indicated. 

Boundary  channels  apparently  can  not  be  dredged  by  either  Government 
without  the  consent  of  the  other. 

The  provision  for  the  free  navigation  of  certain  channels  came  up 
for  consideration  in  1893,  in  connection  with  the  work  undertaken 
by  the  United  States  in  widening  and  deepening  the  channel  at  the 
Lime  Kiln  Crossing  below  Detroit,  and  removing  obstructions  in 
some  of  the  lower  channels,  which  improvements  involved  dredging 
to  some  extent  on  the  Canadian  side  of  the  boundary. 

It  appears  that  in  1874  a  plan  was  projected  for  a  channel  300 
feet  wide,  which  was  afterwards  extended  to  the  width  of  440  feet, 
and  this  work  was  carried  on  under  appropriations  made  by  Con 
gress,  without  reference  to  its  relation  to  the  international  boundary 
line  and  without  interference  by  the  Canadian  authorities,  although 
no  distinct  understanding  in  regard  to  the  matter  was  arrived  at 
with  the  Canadian  Government.  In  the  summer  of  1893,  however, 
it  was  reported  that  the  Canadian  collector  of  customs  at  Amherst- 
burg,  Ontario,  had  intimated  to  the  engineers  in  charge  of  the  work 
that  he  was  under  instructions  to  seize  any  American  plant  working 
in  Canadian  waters  (Secretary  of  War  to  Secretary  of  State,  June  30, 
1893),  and  on  July  6,  1893,  the  Secretary  of  State  wrote  to  the 
British  ambassador  urging — 

"that  permission  be  obtained  from  the  Dominion  authorities  to  pro 
ceed  with  the  work  of  improvement  along  the  best  lines  without 
regard  to  the  exact  location  of  the  international  boundary  line." 

The  question  was  referred  to  the  Canadian  Privy  Council  and 
the  conclusions  of  that  body,  as  stated  in  a  subcommittee  report 
approved  August  8,  1893,  were  briefly  as  follows: 

It  is  pointed  out  in  this  report  that  from  the  Canadian  point  of 
view  the  improved  channel  at  the  Lime  Kiln  Crossing  was  regarded 
as  exclusively  in  Canadian  waters  under  the  boundary  line  fixed  by 
the  maps  and  description  adopted  by  the  Commissioners  under  the 
sixth  article  of  the  Treaty  of  Ghent.  It  was  admitted,  however, 
that  the  view  adopted  by  the  United  States,  on  the  other  hand,  was, 
as  stated  in  the  report  made  by  the  Chief  Engineer,  U.  S.  Army, 
on  November  14,  1888  (S.  Ex.  Doc.  No.  52  of  1889),  that— 

"All  the  channel  opened  by  the  United  States  at  the  Lime  Kiln 
Crossing  is  in  American  waters,  except  the  extreme  northeast  and 
southeast  corners  of  the  cut." 


49 

The  report  of  the  subcommittee  of  the  Privy  Council  then  pro 
ceeds: 

"By  the  seventh  article  of  the  Treaty  of  1842  it  was  provided  as 
follows:  'It  is  further  agreed  that  the  channel  in  the  River  St.  Law 
rence,  on  both  sides  of  the  Long  Sault  Islands  and  of  Barnhart's 
Island,  the  channel  in  the  River  Detroit  on  both  sides  of  the  Island  of  Bois 
Blanc  and  between  that  Island  and  both  the  American  and  Canadian  shores, 
and  all  the  several  channels  and  passages  between  the  various  Islands 
lying  near  the  junction  of  the  River  St.  Clair  with  the  lake  of  that 
name,  shall  be  equally  free  and  open  for  the  ships,  vessels,  and  boats 
of  both  parties.' 

"This  provision,  while  disposing  by  the  concession  of  mutual 
rights  in  the  channels  of  the  difficulties  of  boundary  at  the  islands 
named,  does  not  affect  the  boundary  line  south  of  those  islands  where 
it  would  appear  that  the  obstructions  now  to  be  removed  exist,  nor  does  it 
affect  the  Lime  Kiln  Crossing,  which  lies  north  of  them. 

"It  may  thus  be  safely  concluded  that  the  present  application  of 
the  United  States  Government  is  one  which  affects  Canadian  waters 
and  which  it  rests  with  her  to  grant  or  to  refuse." 

In  this  connection  it  is  stated  that  the  reference  to  the  question 
of  the  boundary  line  is  made  simply — 

"in  order  that  no  misunderstanding  may  hereafter  take  place,  lead 
ing  to  the  assumption  by  the  United  States  of  any  particular  right 
to  the  waterways  by  virtue  of  the  steps  which  it  may  now  take  to 
improve  these  channels." 

The  report  concludes  with  a  recommendation — 

"that  authority  be  given  to  the  United  States  Government,  in  ac 
cordance  with  their  present  request,  to  proceed  with  the  work  of 
removing  obstructions  in  this  river,  irrespective  of  the  boundary 
line,  such  authority  to  be  understood  expressly  as  being  given  with 
out  prejudice  to  the  possessory  rights  of  Canada,  as  defined  by  the 
maps  and  declarations  of  the  Commissioners  under  the  Treaty  of 
Ghent,  made  and  done  at  Utica  on  the  i8th  of  June,  1822." 

A  copy  of  the  minute  of  the  Privy  Council  granting  the  authority 
requested  was  inclosed  by  the  British  ambassador  to  the  Secretary 
of  State  in  his  note  of  August  23,  1893,  in  which  it  is  stated: 

"The  authority  is  granted  without  prejudice  to  the  possessory 
rights  of  Canada  as  denned  by  the  maps  and  declarations  of  the 
Commissioners  under  the  Treaty  of  Ghent." 

Subsequently,  in  the  River  and  Harbor  Act  of  June  13,  1902, 
Congress  adopted  a  project  for  the  improvement  of  the  Detroit 
River  from  Detroit  to  Lake  Erie,  providing  for  a  channel  of  at  least 
600  feet  width  and  21  feet  low-water  depth,  following  in  general  the 
channel  already  under  improvement,  but  locating  the  side  lines  of 

N    B 4 


50 

excavations  so  as  to  straighten  the  channel  as  far  as  practicable,  and 
especially  to  eliminate  the  dangerous  bends  existing  between  the 
head  of  Lime  Kiln  Crossing  and  Bois  Blanc  Island.  It  was  specific 
ally  stated  in  the  project  that  the  enlarged  channel  near  Amherst- 
burg  would  lie  in  Canadian  waters,  and  that  some  claim  for  damages 
would  be  expected  from  property  owners  along  the  Canadian  shores. 
The  situation  as  above  outlined  was  called  to  the  attention  of 
the  British  ambassador  at  Washington  by  the  Secretary  of  State 
in  his  note  of  April  7,  1904,  in  which  it  is  further  stated  that — 

"It  appears  that  under  the  laws  of  Canada  property  rights  in  the 
land  under  navigable  waters  may  be  acquired  by  private  parties, 
and  that  the  owners  of  shore  property  on  the  Canadian  side  of  the 
river,  in  the  vicinity  of  Amhertsburg,  have  deeds  from  the  Crown 
for  the  adjacent  submerged  land,  'to  the  channel  bank,'  this  sub 
merged  land  being  designated  in  the  deeds  as  'water  lots.' 

"As  the  operations  of  this  Government  in  Canadian  waters  are 
being  conducted  by  the  courtesy  and  with  the  consent  of  the  Cana 
dian  Government,  it  is  proper  that  this  Government  should  take  into 
consideration  the  rights  of  the  owners  of  the  submerged  land  under 
the  laws  of  Canada,  and  acquire  the  right  to  excavate  material  within 
or  across  the  private  water  lots.  A  fund  considered  ample  to  pay 
for  the  acquisition  of  this  right  has  been  set  aside  from  the  appro 
priations  already  made  by  Congress  for  the  improvement.  The 
lines  bounding  these  water  lots,  and  the  channel  lines  which  will 
result  from  the  proposed  improvements  under  the  aforesaid  adopted 
project,  are  shown  on  the  accompanying  maps. 

"It  is  believed  that  an  arrangement  with  the  owners  of  the  prop 
erty  for  a  grant  to  the  United  States  of  the  privilege  desired,  and  an 
adjustment  of  the  question  of  compensation  therefor,  can  be  best 
accomplished  by  officials  of  the  Canadian  Government.  I  have 
therefore  the  honor  to  solicit  your  good  offices  to  the  end  that  you 
may  be  pleased  to  bring  the  matter  to  the  attention  of  the  Canadian 
Government  and  to  commend  it  to  their  favorable  consideration." 

It  does  not  appear  from  the  records  in  the  Department  of  State 
that  this  note  was  ever  answered  or  that  the  receipt  of  it  even  was 
acknowledged. 


CESSION  OF  HORSE-SHOE  REEF  IN  1850  BY  GREAT  BRITAIN  TO  THE 

UNITED  STATES. 

On  December  9,  1850,  a  conference  was  held  at  the  Foreign  Office 
in  London  between  Abbott  Lawrence,  the  United  States  minister, 
and  Lord  Palmerston,  the  Secretary  for  Foreign  Affairs  of  Great 
Britain,  at  which  it  was  agreed  that  Great  Britain  should  cede  to 
the  United  States  Horse-Shoe  Reef  in  Niagara  River,  just  below  the 


outlet  of  Lake  Erie,  for  the  purposes  and  under  the  conditions  ex 
pressed  in  the  protocol  of  that  conference,  and  which  are  therein 
stated  as  follows: 

"Mr.  Lawrence  stated  that  he  was  instructed  by  his  Government 
to  call  the  attention  of  the  British  Government  to  the  dangers  to 
.which  the  important  commerce  of  the  great  Lakes  of  the  Interior  of 
America,  and  more  particularly  that  concentrating  at  the  town  of 
Buffalo  near  the  entrance  of  the  Niagara  River  from  Lake  Erie,  and 
that  passing  through  the  Welland  Canal,  is  exposed  from  the  want 
of  a  lighthouse  near  the  outlet  of  Lake  Erie.  Mr.  Lawrence  stated 
that  the  current  of  the  Niagara  River  is  at  that  spot  very  strong, 
and  increases  in  rapidity  as  the  river  approaches  the  falls;  and  as 
that  part  of  the  river  is  necessarily  used  for  the  purpose  of  a  harbor, 
the  Congress  of  the  United  States,  in  order  to  guard  against  the 
danger  arising  from  the  rapidity  of  the  current,  and  from  other  local 
causes,  made  an  appropriation  for  the  construction  of  a  lighthouse 
at  the  outlet  of  the  lake.  But  on  a  local  survey  being  made,  it  was 
found  that  the  most  eligible  site  for  the  erection  of  the  lighthouse 
was  a  reef  known  by  the  name  of  the  'Horse-shoe  Reef,  which  is 
within  the  dominions  of  Her  Britannic  Majesty;  and  Mr.  Lawrence 
was  therefore  instructed  by  the  Government  of  the  United  States  to 
ask  whether  the  Government  of  Her  Britannic  Majesty  will  cede 
to  the  United  States  the  Horse-shoe  Reef,  or  such  part  thereof  as 
maybe  necessary  for  the  purpose  of  erecting  a  lighthouse;  and  if 
not,  whether  the  British  Government  will  itself  erect  and  maintain 
a  lighthouse  on  the  said  Reef. 

"Viscount  Palmerston  stated  to  Mr.  Lawrence  in  reply,  that  Her 
Majesty's  Government  concurs  in  opinion  with  the  Government  of 
the  United  States,  that  the  proposed  lighthouse  would  be  of  great 
advantage  to  all  vessels  navigating  the  Lakes;  and  that  Her  Majes 
ty's  Government  is  prepared  to  advise  Her  Majesty  to  cede  to  the 
United  States  such  portion  of  the  Horse-shoe  Reef  as  may  be  found 
requisite  for  the  intended  lighthouse,  provided  the  Government  of 
the  United  States  will  engage  to  erect  such  lighthouse,  and  to  main 
tain  a  light  therein;  and  provided  no  fortification  be  erected  on  the 
said  Reef. 

"Mr.  Lawrence  and  Viscount  Palmerston,  on  the  part  of  their 
respective  Governments,  accordingly  agreed  that  the  British  Crown 
should  make  this  cession,  and  that  the  United  States  should  accept 
it,  on  the  above-mentioned  conditions."  (Treaties  and  Conventions, 
p.  444.) 

This  arrangement  was  approved  on  behalf  of  the  United  States 
by  Mr.  Webster,  then  Secretary  of  State,  in  his  note  of  January  17, 
1851,  to  Mr.  Lawrence,  and  the  British  Secretary  for  Foreign  Affairs 
was  so  notified  by  Mr.  Lawrence  on  February  10,  1851. 

The  necessary  appropriations  for  the  erection  of  the  light-house 
were  made  by  Congress  (9  Stat.  at  L.,  380  and  627;  10  Stat.  at  L., 
343),  and  the  light-house  was  erected  in  1856. 


52 

This  cession  raises  an  interesting  question  as  to  its  effect  upon 
the  boundary,  and  the  status  of  the  Reef  with  respect  to  the  juris 
diction  of  the  two  countries.  No  mention  is  made  in  the  negotia 
tions  or  the  final  arrangements  of  any  change  in  the  boundary  so  as 
to  include  the  Reef  within  the  borders  of  the  United  States,  but  if 
the  Reef  is  to  be  regarded  as  a  part  of  the  United  States  then  a 
change  in  the  boundary  to  so  include  it  is  necessarily  implied.  If,' 
on  the  other  hand,  the  Reef  is  to  be  regarded  as  property  of  the 
United  States  lying  within  the  Dominion  of  Canada,  then  the  bound 
ary  line  would  be  undisturbed.  In  that  case,  however,  the  status 
of  the  Reef  with  respect  to  the  criminal  and  civil  jurisdiction  of  the 
respective  countries  would  still  remain  to  be  determined.  It  does 
not  appear  that  these  questions  have  ever  been  raised,  and  they  are 
not  likely  to  become  of  practical  importance  so  long  as  the  United 
States  continues  to  maintain  a  light-house  there. 

THE  LOCATION  OF  THE  BOUNDARY  WITH  RESPECT  TO  TWO  IS 
LANDS  IN  LAC  LA  CROIX  AND  AN  ISLAND  IN  THE  LAKE  OF 
THE  WOODS. 

Prior  to  the  discovery  of  the  existence  of  the  missing  Webster 
and  Ashburton  maps,  showing  the  boundary  in  Lac  la  Croix,  a 
question  arose  as  to  the  nationality  of  Hunters  and  Coleman  islands, 
in  that  lake,  under  the  following  circumstances: 

About  the  year  1883  an  American  citizen  had  located  as  a  settler 
on  Coleman  Island,  understanding  it  to  be  within  the  borders  of  the 
State  of  Minnesota.  Some  time  thereafter  the  provincial  govern 
ment  of  Ontario  made  a  survey  of  timber  along  the  boundary  at  that 
point  and  included  Hunters  and  Coleman  islands  in  the  survey. 
This  circumstance  was  reported  to  the  United  States  Government, 
and  on  July  3,  1895,  a  note  was  written  by  Mr.  Uhl,  Assistant  Secre 
tary  of  State,  to  the  British  ambassador  in  Washington,  calling  the 
matter  to  his  attention.  In  that  note  the  question  of  the  ownership 
of  Hunters  Island  was  not  discussed,  but  with  respect  to  Coleman 
Island  it  is  stated  that  it  appears  impossible  that  the  jurisdiction 
over  it  could  legitimately  become  a  subject  of  contention,  and  that — 

"not  only  is  its  position  well  to  the  south  of  any  natural  boundary 
line  passing  through  the  waters  of  the  Lac  la  Croix,  but  by  con 
tinued  occupation  and  governmental  survey  during  many  years  a 
presumption  of  title  on  our  behalf  has  been  established,  not  to  be 
set  aside  save  upon  the  most  absolute  proof  to  the  contrary,  the  bur 
den  of  which  necessarily  would  rest  upon  the  Canadian  authorities." 

It  is  further  stated  that  "no  chart  of  that  portion  of  the  boundary 
has  ever  been  made  by  the  two  Governments  jointly."  The  subse 
quent  discovery  of  the  missing  maps  with  the  Webster-Ashburton 


53 

line  marked  on  them  makes  a  revision  of  this  statement  necessary, 
and  also  puts  the  claim  of  the  United  States  with  respect  to  these 
islands  on  an  entirely  different  footing. 

In  Mr.  Uhl's  note  above  referred  to  he  proposed  that  an  "exact 
agreement"  be  reached  between  the  two  Governments — 

"whereby  this  portion  of  the  boundary  line  between  the  United 
States  and  Her  Majesty's  Dominion  of  Canada  may  be  precisely 
marked,  in  accordance  with  the  true  intent  of  the  contracting  parties 
expressed  in  the  Treaty  of  1842,  and  having  due  regard  to  prescrip 
tive  rights  of  undisputed  occupation  within  the  reasonable  limits  of 
such  boundary." 

In  this  connection  he  called  attention  to  the  fact  that  the  line 
through  Lac  la  Croix  as  proposed  by  the  British  Commissioner 
under  Article  VII  of  the  Treaty  of  1814,  which  was  shown  on  the 
certified  copy  of  the  subchart  attached  to  No.  XV,  substituted  in 
the  American  set  for  the  missing  original  as  aforesaid,  placed  both 
of  these  islands  on  the  American  side  of  the  boundary.  The  subse 
quent  discovery  of  the  missing  original  of  this  chart  shows  that 
Webster  and  Ashburton  adopted  as  the  boundary  the  line  so  pro 
posed  by  the  British  Commissioner,  and  the  original  chart  with  the 
proposed  line  marked  on  it  was  signed  by  them  as  one  of  the  bound 
ary  charts  under  the  Treaty  of  1842.  This  would  seem  to  dispose 
of  the  British  claims  with  respect  to  these  islands  if  it  be  found,  as 
stated  by  Mr.  Uhl,  that  they  both  are  on  the  American  side  of  such 
line. 

In  Mr.  Adee's  report  of  February  21,  1896,  above  referred  to,  this 
incident  is  fully  discussed  and  the  correspondence  with  respect  to 
it  is  there  printed. 

The  incident  is  also  discussed  in  Moore's  International  Law 
Digest,  Volume  I,  page  751,  section  158. 

In  January,  1896,  the  Committee  on  Foreign  Affairs  of  the 
House  of  Representatives  made  an  inquiry  of  the  State  Department 
with  respect  to  this  question,  and  also  generally  with  respect  to  the 
condition  of  the  northern  boundary,  in  connection  with  a  concurrent 
resolution  then  pending  in  Congress,  authorizing  the  President  to 
enter  into  negotiations  for  the  settlement  of  the  boundary  between 
the  State  of  Minnesota  and  the  British  possessions. 

In  acknowledging  the  receipt  of  this  inquiry,  Mr.  Olney  wrote  to 
the  chairman  of  the  Foreign  Affairs  Committee  on  January  24,  1896, 
stating,  in  accordance  with  the  then  accepted  belief,  which  has  since 
been  proved  erroneous,  that — 

"As  is  stated  in  the  preamble  of  the  resolution  submitted,  there 
has  been  no  agreement  between  the  two  Governments  delimiting  the 
territorial  dominion  of  each,  from  the  mouth  of  the  Pigeon  River  to 


54 

and  through  the  water  communication  up  to  latitude  49°  23'  55" 
north,  longitude  95°  14'  38"  west,  the  point  accepted  in  Article  II  of 
the  Webster-Ashburton  Treaty  of  1842,  as  the  definitive  termination 
of  the  boundary  of  the  Treaty  of  Paris,  1783,  as  ratified  by  Article 
VII  of  the  Treaty  of  Ghent,  1814." 

The  letter  continues: 

"The  rapid  settlement  of  the  territory  adjacent  to  the  boundary 
line,  both  in  the  State  of  Minnesota  and  the  Province  of  Ontario, 
has  already  caused  vexatious  questions  growing  out  of  this  undeter 
mined  line  to  arise,  and  renders  it  of  great  importance,  in  order  to 
avoid  collisions  between  the  inhabitants  and  officials  of  the  two 
countries,  that  a  boundary  line  should  be  clearly  marked  and  con 
ventionally  agreed  upon. 

"To  this  end  negotiations  have  been  in  progress  for  some  time, 
and  it  is  the  view  of  the  Department  that  should  an  appropriation 
be  made,  in  the  event  of  the  negotiation  of  a  treaty  for  the  purpose, 
to  defray  the  expenses  of  a  joint  survey  and  commission  to  report 
upon  an  agreement  founded  on  the  true  intent  of  the  previous 
boundary  treaties,  as  may  be  demonstrated  by  an  accurate  examina 
tion  of  the  territory  referred  to,  it  would  materially  assist  in  the 
settlement  of  this  unadjusted  boundary." 

In  1895  there  also  arose  a  question  with  respect  to  the  nationality 
of  another  island  adjacent  to  this  boundary,  known  as  Oak  Island, 
in  the  Lake  of  the  Woods.  It  was  reported  that  the  Canadian 
authorities  were  making  surveys  for  the  purpose  of  showing  that  the 
channel  in  the  Lake  of  the  Woods  lay  to  the  westward  of  this  island, 
with  the  intention  of  claiming  that  the  boundary  line  should  follow 
the  channel,  thus  placing  the  island  on  the  Canadian  side.  Upon 
inquiry  it  was  found  that  this  report  arose  from  a  misapprehension, 
and  it  was  stated  on  the  part  of  the  Canadian  Government  that  the 
report  was  without  foundation  and  that  no  such  survey  had  been 
undertaken. 

The  Canadian  position  is  stated  in  the  minutes  of  the  Privy 
Council,  approved  January  8,  1896,  from  which  the  following  extract 
is  taken : 

"The  minister  further  states  that  the  only  incident  which  has 
come  under  his  notice  which  might  have  been  instrumental  in  lead 
ing  to  rumor  resulting  in  the  representations  to  the  United  States 
Government,  is  connected  with  the  issue  of  fishing  licenses  in  Lake 
of  the  Woods. 

"  It  has  been  claimed  by  certain  parties  and  supported  by  the 
opinion  of  a  number  of  old  settlers  that  the  boundary  line  followed 
the  steamboat  channel,  and  that  such  channel  was  south  of  Oak 
Island.  Also,  some  inquiries  were  made  at  the  time  touching  the 
identity  of  the  island  laid  down  as  No.  i  in  the  boundary  map  with 
that  commonly  known  as  Oak  Island.  Beyond  the  authoritative 
establishment  of  the  boundary  as  laid  down  in  the  conventions  cited 


55 

by  Mr.  Secretary  Olney,  and  of  the  identity  of  the  island  designated 
as  No.  i,  the  department  of  marine  and  fisheries  has  had  no  concern 
whatever;  neither  has  it  in  any  way  suggested  an  expansion  of  ter 
ritory  or  jurisdiction  beyond  that  conventionally  conferred  upon  the 
Crown."  (Foreign  Relations,  1895,  Part  *»  P-  725-) 

For  a  statement  of  this  case  see  Moore's  International  Law  Digest, 
Volume  I,  page  752,  section  158. 


PROPOSALS  FOR  THE  MORE  COMPLETE  DEFINITION  AND  MARK 
ING  OF  THE  ENTIRE  BOUNDARY  FROM  THE  ST.  LAWRENCE 
AT  THE  FORTY-FIFTH  PARALLEL  TO  THE  NORTHWEST  ANGLE 
OF  THE  LAKE  OF  THE  WOODS,  BY  JOINT  ACTION  OF  THE  TWO 
GOVERNMENTS. 

President  Cleveland  called  attention  in  his  annual  message  of 
December  2,  1895,  "to  the  unsatisfactory  delimitation  of  the  respec 
tive  jurisdictions  of  the  United  States  and  the  Dominion  of  Canada 
in  the  Great  Lakes  at  the  approaches  to  the  narrow  waters  that  con 
nect  them,"  stating  that  "the  waters  in  question  are  frequented  by 
fishermen  of  both  nationalities,"  and  that — 

"Owing  to  the  uncertainty  and  ignorance  as  to  the  true  bound 
ary,  vexatious  disputes  and  injurious  seizures  of  boats  and  nets  by 
Canadian  cruisers  often  occur,  while  any  positive  settlement  thereof 
by  an  accepted  standard  is  not  easily  to  be  reached." 

And  he  declared  that — 

"A  joint  commission  to  determine  the  line  in  those  quarters  on  a 
practical  basis,  by  measured  courses  following  range  marks  on  shore, 
is  a  necessity  for  which  immediate  provision  should  be  made." 

Pursuant  to  this  suggestion  a  joint  resolution  (H.  Res.  41)  was 
introduced  in  the  House  to  provide  for  a  commission  to  ascertain 
the  boundary  between  Canada  and  the  United  States  in  the  north 
ern  lakes,  relating  especially  to  the  boundary  in  Lakes  Ontario, 
Erie,  St.  Clair,  Huron,  and  Superior,  and  it  was  in  response  to  a 
request  by  the  Committee  on  Foreign  Affairs  for  suggestions  or 
information  from  the  Department  of  State  on  this  subject  that  Mr. 
Adee's  report  of  February  21,  1896,  above  referred  to,  was  prepared. 

The  references  in  Mr.  Adee's  report  to  the  line  west  of  Lake 
Superior  have  been  considered  herein  elsewhere.  With  respect  to 
the  boundary  through  the  Great  Lakes  he  says,  in  his  report: 

"The  question  of  the  boundary  in  the  Great  Lakes  and  at  the 
approaches  to  the  water  communications  is  of  a  different  character, 
being  entirely  practical  and  involving  the  location,  upon  the  face  of 
the  water  by  any  convenient  ascertainment  or  process,  of  the  treaty 
line  as  drawn  upon  the  Ghent  maps  by  the  Commissioners,  and 


56 

subsequently,  as  to  a  part  of  the  line,  by  Mr.  Webster  and  Lord 
Ashburton.  The  boundary  lines  so  charted  appear  to  have  been 
drawn  by  the  aid  of  rule  and  dividers  upon  the  charts,  and  were 
the  charts  themselves  correct  in  their  measurements  and  dilinea- 
tions  of  the  contours  of  the  lakes  it  would  be  possible,  by  measured 
courses  and  distances  from  points  on  the  shores,  to  locate  upon  the 
face  of  the  water  any  particular  spot  selected  in  the  line  so  drawn 
upon  the  map.  The  maps,  however,  are  far  from  being  accurate  as 
to  contours  or  dimensions.  That  of  Lake  Ontario,  upon  comparison 
with  the  most  recent  maps  executed  after  exhaustive  triangulations, 
is  found  to  be  reasonably  accurate.  It  is  noted  as  having  been 
copied  from  the  survey'made  in  the  years  1815,  1816,  1817,  by  Capt. 
H.  A.  W.  Owen,,  of  Her  Britannic  Majesty's  royal  navy.  The  chart 
of  Lake  Ontario  is,  however,  not  signed  by  the  Commissioners. 

"The  Ghent  map  of  Lake  Erie  is  extraordinarily  imperfect  in 
contour  and  inaccurate  in  dimensions  as  to  all  that  part  lying  be 
tween  the  entrance  to  the  Niagara  River  and  Port  Pelee.  It  ap 
pears  from  a  note  thereon  that  the  part  west  of  Point  Pelee  and 
Sandusky,  including  all  the  islands,  was  reduced  from  the  actual 
survey  made  by  order  of  the  Commissioners,  and  a  separate  chart  of 
the  lake  westward  of  Point  Pelee,  showing  the  triangulations,  and 
duly  signed,  is  embraced  in  the  Ghent  series.  The  same  footnote 
further  states  that  'the  other  parts  of  the  lake  (except  the  entrance 
into  the  Niagara  River)  are  reduced  from  such  printed  maps  as  were 
supposed  to  be  the  most  accurate.'  That  the  Commissioners  were 
misled  in  their  estimate  of  the  accuracy  of  the  sources  from  which 
their  map  was  compiled  is  evident  upon  simple  measurement.  For 
example,  in  that  part  opposite  Long  Point,  referred  to  in  the  com 
mittee's  letter  of  the  lyth  of  January  as  a  probable  field  for  dispute, 
the  distance  from  the  northwesterly  point  of  Presque  Isle,  near 
Erie,  Pa.,  to  the  southern  extremity  of  Long  Point  is  found  by  the 
scale  drawn  upon  the  map  itself  to  be  about  37 %  geographical 
miles,  while  upon  the  accurate  modern  maps,  reduced  from  surveys 
made  by  the  Army  Corps  of  Engineers  and  published  by  the  Hydro- 
graphic  Office,  the  same  distance  is  in  fact  a  trifle  less  than  23  miles. 

"This  circumstance  makes  determination  by  measurement  from 
either  shore  to  the  delineated  boundary  of  the  Ghent  map  impossible, 
for  the  distances  so  measured  would  overlap  some  14  miles  in  the 
middle  of  the  lake.  Neither  is  an  approximate  reproduction  of  the 
Ghent  line  upon  a  modern  map  feasible,  owing  to  the  variations  in 
the  contours  of  the  shores  between  which  it  must  be  drawn.  This 
circumstance  alone  makes  the  exact  determination  of  the  charted 
treaty  boundary  in  Lake  Erie  entirely  impossible  for  the  greater  part 
of  its  length,  and  even  in  the  narrow  waters  at  either  end  only  an 
approximate  location  can  be  determined. 

"The  original  chart  of  Lake  Erie,  like  that  of  Ontario,  is  un 
signed  by  the  Commissioners.  It  may,  therefore,  be  properly  said 
that  as  to  the  main  body  of  those  two  lakes  there  does  not  exist  a 
charting  of  the  boundary  having  the  force  and  value  of  treaty. 

"The  map  of  Lake  Huron,  however,  is  signed  by  the  Commis 
sioners,  and  the  boundary  marked  thereon  is  expressly  attested  by 
them  to  be  that  designated  by  Article  VI  of  the  treaty.  A  note  shows 
that  but  a  very  small  portion  of  the  contour  of  the  lake,  marked  by 


57 

black  lines,  was  actually  surveyed.  By  far  the  greater  part  of  its 
shore  is  shown  by  dotted  lines,  which  the  same  note  says  were 
copied  from  the  map  of  Mr.  William  Smyth,  surveyor-general  of 
upper  Canada,  and  are  not  to  be  depended  on. 

"The  small  area  of  Lake  St.  Clair  made  its  comparatively  accu 
rate  triangulation  and  mapping  a  work  of  little  difficulty,  and  the 
boundary  traced  on  the  map  of  that  lake  and  attested  by  the  Com 
missioners  may  be  taken  as  a  sufficient  demarcation  for  all  practical 
purposes. 

"Lastly,  the  map  of  Lake  Superior  bears  no  note  of  the  sources 
from  which  it  was  taken,  but  is  simply  designated  a  'true  map.'  In 
practical  application,  however,  it  may  be  assumed  that  to  locate 
upon  the  face  of  the  water  the  line  traced  by  Mr.  Webster  and  Lord 
Ashburton  would,  for  the  greater  part  of  its  length,  be  no  easy  task. 
******* 

"So  far  as  the  maps  of  the  Treaty  of  Ghent  exhibit  a  charted 
boundary  line  attested  by  the  Commissioners,  they  have  been  re 
garded  as  the  ultimate  authority  under  the  treaty.  They  have  been 
so  recognized  on  several  occasions,  as  for  instance  in  1903,  when 
question  arose  touching  the  encroachment  of  a  portion  of  the  Ameri 
can  Detroit  River  improvements  upon  Canadian  territory,  and  in  that 
instance  the  negotiations  between  the  two  Governments  with  respect 
to  permission  to  so  encroach  were  founded  upon  the  line  traced  in 
the  Ghent  chart.  They  have  also  been  appealed  to  as  final  author 
ity  in  determining  questions  arising  through  the  seizure  of  American 
nets  and  fishing  vessels  by  Canadian  cruisers.  A  recent  case,  aris 
ing  near  Sandusky,  a  short  distance  east  of  Middle  Island,  in  Lake 
Erie,  disclosed  the  fact  that  the  fishermen,  relying  upon  erroneous 
local  maps,  had  set  their  nets  almost  due  east  of  Middle  Island, 
while  the  charted  line  trends  southwesterly  from  that  point.  The 
courses  and  ranges  recorded  in  the  log  of  the  Canadian  cruiser  indi 
cated  that  the  greater  part,  if  not  all,  of  the  nets  were,  in  fact,  within 
Canadian  treaty  waters. 

"In  the  application  of  this  treaty  boundary  to  actual  facts  and 
circumstances  difficulty  is  found,  for  two  reasons.  The  first  is  that 
the  maps  surveyed  or  copied  by  the  Commissioners  are  not  always 
accurate  as  to  contours  or  distances,  so  that,  as  above  mentioned, 
courses  and  measurements  from  given  points  on  either  shore,  as 
compared  with  similar  courses  or  measurements  from  other  points, 
can  not  certainly  locate  upon  an  accurate  modern  map  any  desig 
nated  point  of  the  charted  treaty  line.  While  this  difficulty  is  les 
sened  in  the  narrow  connecting  waters,  and  the  approaches  thereto, 
it  becomes  insuperable,  as  has  been  shown,  in  respect  to  Lake  Erie, 
and  the  same  difficulty  exists  in  less  degree  as  to  the  other  Great 
Lakes. 

"In  the  second  place,  the  charted  treaty  line  is  an  arbitrary 
curve  traced  upon  the  maps  prepared  by  the  Commissioners,  appa 
rently  by  a  somewhat  tremulous  hand,  so  that  the  curve  is  by  no 
means  regular,  and  the  impossibility  of  locating  any  point  upon 
such  a  curve  by  courses  or  distances  or  by  range  marks  on  shore  is 
evident. 


58 

"As  to  the  district  between  Lake  Superior  and  the  Lake  of  the 
Woods,  the  Webster-Ashburton  Treaty  of  1842  should  be  a  sufficient 
guide  for  the  correct  charting  of  the  boundary  by  an  international 
surveying  commission.  The  concurrent  resolution  introduced  by 
Mr.  Town  covers  the  latter  point,  and  requests  the  institution  of 
negotiations  with  the  British  Government  looking  to  a  joint  survey 
and  demarcation  of  this  part  of  the  treaty  boundary.  The  joint 
resolution  (H.  Res.  41)  appears  to  contemplate  the  establishment  of 
the  true  boundary  in  the  Great  Lakes  by  a  commission  to  be  ap 
pointed  by  the  United  States  alone.  It  is  respectfully  submitted 
that  the  result  of  such  an  inquiry  and  fixation  of  the  line  would 
have  no  international  effect  and  could  only  be  of  service  so  far  as  it 
might  indicate  to  this  Government  the  ground  to  be  definitely  taken 
by  it  in  the  conduct  of  ultimate  negotiations. 

"It  would  seem  preferable  that  a  single  joint  resolution  should 
also  invite  negotiation  for  a  conventional  fixation  of  the  lake  bound 
aries  by  courses,  ranges,  and  distances  in  substitution  for  the  imper 
fect  line  now  drawn  upon  the  Ghent  maps." 

No  action  on  this  recommendation  was  taken  at  that  session  of 
Congress. 

Negotiations  by  the  Joint  High  Commission  in  1898-99. 

The  Commissioners  on  both  sides  were  authorized  by  the  official 
instructions  issued  to  them  by  their  respective  Governments  to  agree 
to  an  arrangement  for  the  more  complete  definition  and  marking  of 
the  boundary  wherever  it  was  insufficiently  defined. 

In  the  confidential  pamphlet  prepared  for  the  information  of  the 
Commissioners  on  the  part  of  the  United  States  the  following  state 
ment  was  made  with  reference  to  the  boundary  through  the  Great 
Lakes  and  at  the  approaches  of  connecting  waterways: 

"This  boundary  is  defined  under  treaty  conventions,  and  the  line 
from  the  St.  Lawrence  River  to  the  point  in  Lake  Superior  above 
referred  to  is  traced  on  charts;  but  the  charts  of  Lakes  Huron,  St. 
Clair,  and  Superior  are  the  only  ones  signed  by  the  Commissioners 
under  the  treaties,  and  the  charts  themselves,  in  their  measure 
ments  and  courses,  are  inaccurate,  with  the  exception  of  the  chart 
of  Lake  Ontario. 

"The  more  complete  definition  of  the  boundary  line  throughout 
this  portion  of  the  frontier  involves  the  location  on  the  water  of 
the  lines  drawn  on  the  charts  by  the  Commissioners  under  former 
treaties,  and  the  marking  of  such  lines  by  convenient  ranges  or 
otherwise. 

"A  practical  difficulty  will  be  presented  in  marking  an  arbitrary 
curved  line  on  the  face  of  the  waterways,  as  indicated  on  the  charts, 
and  it  has  been  suggested  that  courses,  distances,  and  ranges  should 
be  substituted  for  the  imperfect  line  now  drawn  on  the  Ghent  maps." 


59 

The  discussions  of  the  Commission  on  this  question  appear  in  a 
special  report  prepared  on  the  proceedings  of  the  Joint  High  Com 
mission.  It  is  sufficient  here  to  say  that  no  agreement  as  to  any 
specific  arrangement  was  reached  by  the  Commission.  It  was  sug 
gested,  however,  that  inasmuch  as  the  Commission  could  not  itself 
complete  this  branch  of  the  subject  it  should  be  referred  to  two 
commissioners  appointed  by  the  respective  Governments,  in  order 
that  it  might  be  taken  up  from  a  scientific  standpoint.  On  the  line 
of  this  suggestion  the  subcommittee  of  the  Commission  in  charge  of 
this  subject  prepared  the  draft  article  set  out  below,  which,  how 
ever,  was  not  submitted  to  the  Commission.  It  provides  for  the 
appointment  of  one  geographer  or  surveyor  on  each  side  to  ascertain 
and  mark  the  boundary  line  and  report  all  points  of  agreement  or 
disagreement  to  their  respective  Governments,  and  for  a  third  com 
missioner  to  be  named  in  case  of  a  disagreement.  This  draft  article 
is  as  follows: 

"In  order  to  provide  for  the  amicable  adjustment  of  possible 
differences  and  conflicts  of  jurisdiction  in  respect  to  the  international 
boundary-line  hereinafter  described,  it  is  agreed  that  whenever  dif 
ferences  shall  arise  in  respect  to  the  precise  limits  of  the  respective 
national  jurisdictions  between  the  point  where  the  boundary-line 
enters  the  Iroquois  or  St.  Lawrence  River  and  westward  to  Rainy 
Lake,  as  described  in  the  Treaty  concluded  at  Washington  on  the 
9th  day  of  August,  1842,  and  known  as  the  Webster-Ashburton 
Treaty,  and  as  further  delineated  on  the  maps  certified  by  the  signa 
tures  of  Daniel  Webster  and  Ashburton  to  be  the  maps  of  boundary 
agreed  to  by  said  Treaty,  the  high  Signatory  Parties  shall  each 
appoint  one  expert  geographer  or  surveyor  as  a  Commissioner,  and 
the  two  Commissioners  so  appointed,  after  making  oath  in  writing 
that  they  will  impartially  and  faithfully  perform  this  duty,  shall  by 
common  accord  proceed  to  ascertain  the  boundary-line  so  brought 
in  question,  and  shall  designate  and  mark  the  same  in  such  manner, 
by  monuments  on  land,  or  by  marks  or  ranges  from  the  shore  where 
the  boundary  is  a  water-line,  as  shall  be  most  practicable  and  certain, 
and  shall  make  joint  report  of  all  points  of  their  agreement  and  of 
their  disagreement,  if  any,  to  both  Governments.  Their  joint  agree 
ment  shall  be  accepted  as  determining  the  line  in  question.  In  case 
of  their  disagreement,  the  High  Contracting  Parties  shall  agree  upon 
a  third  impartial  Commissioner,  whose  Award  upon  the  point  or 
points  of  disagreement  shall  be  accepted  as  final.  The  reasonable 
expenses  of  such  Commission  shall  be  paid  by  the  two  Parties  in 
equal  moieties." 

Later  negotiations. 

Subsequent  to  the  adjournment  of  the  Joint  High  Commission 
some  negotiations  were  had  between  the  two  Governments  with  a 
view  to  arranging  for  more  completely  defining  and  marking  the 
entire  boundary  between  the  United  States  and  Canada,  from  the 
Atlantic  to  the  Pacific,  and  as  appears  from  the  correspondence 


6o 

exchanged  both  countries  were  in  accord  as  to  the  importance  and 
advisability  of  providing  for  such  action  wherever  it  proved  to  be 
necessary.  The  question  of  the  boundary  through  the  Great  Lakes 
was  not  particularly  discussed,  but  the  line  between  Lake  Superior 
and  the  Lake  of  the  Woods  was  specially  referred  to  and  the  neces 
sity  for  resurveying  and  marking  this  portion  of  the  line  was  recog 
nized.  No  formal  agreement  was  entered  into,  however,  and  the 
question  was  not  carried  beyond  the  expression  of  a  concurrence  of 
views  between  the  two  Governments. 

In  connection  with  this  discussion  Mr.  Kasson,  who  was  the 
American  member  of  the  Joint  High  Commission  subcommittee  in 
charge  of  the  boundary  question,  prepared  a  memorandum  for  Mr. 
Hay,  which  is  dated  August  7,  1900,  and  is  now  on  file  in  the  Depart 
ment  of  State  (bound  volume  of  Miscellaneous  Letters  of  August, 
1900).  In  that  memorandum  Mr.  Kasson,  after  referring  to  the 
missing  original  treaty  chants  of  the  Webster-Ashburton  Treaty, 
makes  the  following  suggestions: 

"But  even  with  their  possession,  there  remains  the  need  of  defi 
nition  by  boundary  marks  of  the  line  of  portages,  and  other  land 
lines,  between  and  connecting  the  water  lines  crossing  summit 
divides,  etc. 

"The  ownership  of  certain  islands  in  lakes  and  rivers  north  of 
Minnesota  has  been  in  dispute,  but  it  is  believed  will  be  determined 
by  the  definite  treaty  line  indicated  on  the  missing  maps  above 
mentioned. 

******* 

"One  other  point  is  worthy  of  mention.  There  are  at  two 
points — perhaps  more — obnoxious  projections  of  national  territory 
and  jurisdiction  beyond  the  general  course  of  the  boundary.  It  is 
possible  that  mutually  advantageous  exchanges  of  territory  might 
be  made  to  the  marked  improvement  of  the  boundary  demarcation, 
and  to  the  convenience  of  the  neighboring  inhabitants.  This  sug 
gestion  occurred  to  the  subcommission,  but  was  not  followed  to  any 
conclusion." 

In  the  proposed  treaty  which  is  now  under  consideration  with  ref 
erence  to  the  inland  fisheries  it  is  provided  in  Article  IV  as  follows: 

"The  two  governments  engage  to  have  prepared  as  soon  as 
practicable,  charts  of  the  waters  described  in  this  article  with  the 
international  boundary  line  indicated  thereon;  and  to  establish 
such  additional  boundary  monuments,  buoys  and  marks  as  may  be 
recommended  by  the  commission." 

The  waters  referred  to  in  this  article,  as  the  negotiations  now 
stand,  include  nearly  all  the  boundary  waters  throughout  this  portion 
of  the  boundary. 

The  International  Water  Ways  Commission  has  lately  undertaken 
to  locate  and  mark  by  buoys  certain  portions  of  the  boundary  line 
in  Lake  Erie  where  disputes  have  arisen  concerning  fishing  rights. 


6i 


THE    LINE    AS    SHOWN    ON    THE    ORIGINAL    TREATY    MAPS 
REPRODUCED    ON    MODERN   CHARTS. 

In  connection  with  the  preparation  of  this  report  the  boundary 
line  as  shown  on  the  original  treaty  maps  now  on  file  in  the  Depart 
ment  of  State  has  been  traced  on  a  series  of  modern  charts  of  a 
sufficiently  large  scale  to  show  the  course  of  the  line  in  detail,  which 
charts  were  procured  from  the  War  Department  for  that  purpose. 

This  series  extends  from  the  beginning  of  the  line  in  the  St.  Law 
rence  River  through  the  Great  Lakes  and  connecting  waterways  to 
the  mouth  of  Pigeon  River  in  Lake  Superior.  Beyond  this  point  it 
has  been  impossible  as  yet  to  procure  accurate  charts,  or  in  fact  any 
charts  on  a  scale  sufficiently  large  for  the  purpose.  No  maps  show 
ing  the  northern  border  of  the  State  of  Minnesota  have  been  pub 
lished  under  the  authority  of  the  government  of  that  State.  The 
War  Department  has  made  surveys  of  this  region,  but  no  charts 
available  for  the  use  for  which  they  are  desired  have  been  prepared 
from  such  surveys.  The  Interior  Department  also  has  had  surveys 
made  under  the  direction  of  the  General  Land  Office,  but  these  do 
not  extend  beyond  the  edge  of  the  waterways  through  which  the 
boundary  runs,  except  in  certain  instances  where  there  are  islands 
on  the  American  side,  and  consequently  the  boundary  line  can  not 
be  shown  to  advantage  on  the  charts  prepared  from  these  surveys. 

Arrangements  have  been  made  to  procure  a  series  of  recent  maps 
showing  the  northern  border  of  the  State  of  Minnesota  on  a  large 
scale,  prepared  unofficially  but  understood  to  be  accurate,  and  when 
such  maps  are  received  the  work  of  reproducing  on  modern  maps 
the  northern  boundary  as  shown  on  the  original  boundary  maps  will 
be  completed. 

The  line  thus  shown  is,  of  course,  without  authoritative  value, 
but  it  serves  to  indicate  such  deficiences  as  may  exist  in  the  treaty 
definition  or  delimitation  of  any  portion  of  the  boundary.  The 
actual  marking  of  the  line  on  these  charts  was  done  by  arrangement 
with  the  Superintendent  of  the  Coast  and  Geodetic  Survey,  who 
detailed  a  member  of  his  staff  for  that  purpose,  and  the  work  was 
done  by  him  in  an  exceedingly  skillful  and  satisfactory  manner. 
His  report  on  this  work,  dated  March  26,  1906,  is  now  on  file  in  the 
Bureau  of  Rolls  and  Library  of  the  Department  of  State,  giving  a 
detailed  description  of  the  original  boundary  maps  now  on  file  in  the 
Department  of  State,  and  indicating  the  portions  of  the  boundary 
not  shown  on  such  treaty  maps. 


PART    III. 


THE  NORTHWESTERN  BOUNDARY,  FKOM  THE  NORTH- 
WESTERNMOST  POINT  OF  THE  LAKE  OF  THE  WOODS 
TO  THE  PACIFIC  OCEAN. 


THE  XOBTHWESTEEX  BOTJNDABY,  FEOM  THE  XORTH- 
WESTERXMOST  POINT  OF  THE  LAKE  OF  THE  WOODS 
TO  THE  PACIFIC  OCEAX. 


BOUNDARY  EAST  OF  THE  ROCKY  MOUNTAINS. 

The  treaties  of  1782  and  1783  both  provided,  in  identical  terms, 
that  the  northern  boundary  of  the  United  States  should  run  from 
the  most  northwestern  point  of  the  Lake  of  the  Woods  "on  a  due 
west  course  to  the  river  Mississippi." 

It  was  supposed  at  the  time  these  treaties  were  entered  into  that 
the  ^source  of  the  Mississippi  River  was  far  enough  north  to  be 
above  a  line  drawn  due  west  from  the  point  of  departure  fixed  by 
these  treaties  for  this  line  at  the  Lake  of  the  Woods.  Under  these 
treaties  the  Mississippi  River  was  taken  as  the  western  boundary  of 
the  United  States,  and  the  belief  then  prevailing  that  the  headwaters 
of  the  Mississippi  River  were  in  British  territory  finds  further  ex 
pression  in  the  provision  granting  to  British  subjects  the  right  of 
navigation  over  the  intervening  waters  of  that  river  to  the  sea.  It 
will  be  observed  that  this  right  of  navigation  was  not  renewed  in 
the  treaty  of  peace  (Ghent,  1814)  after  the  war  of  1812,  at  which 
time  it  was  known  that  the  Mississippi  River  did  not  extend  into 
Canada. 

Some  doubt  had  arisen  in  regard  to  the  location  of  the  head 
waters  of  the  Mississippi  prior  to  the  making  of  the  Jay  Treaty  in 
1794,  and  in  consequence  of  such  uncertainty  it  was  provided  in  that 
treaty,  in  Article  IV: 

"Whereas  it  is  uncertain  whether  the  river  Mississippi  extends 
so  far  to  the  northward  as  to  be  intersected  by  a  line  to  be  drawn 
due  west  from  the  Lake  of  the  Woods,  in  the  manner  mentioned 
in  the  treaty  of  peace  between  His  Majesty  and  the  United  States: 
it  is  agreed  that  measures  shall  be  taken  in  concert  between  his 
Majesty's  Government  in  America  and  the  Government  of  the  United 
States,  for  making  a  joint  survey  of  the  said  river  from  one  degree 
of  latitude  below  the  falls  of  St.  Anthony,  to  the  principal  source  or 
sources  of  the  said  river,  and  also  of  the  parts  adjacent  thereto;  and 
that  if,  on  the  result  of  such  survey,  it  should  appear  that  the  said 
river  would  not  be  intersected  by  such  a  line  as  is  above  mentioned,, 
the  two  parties  will  thereupon  proceed,  by  amicable  negotiation,  to 
regulate  the  boundary  line  in  that  quarter,  as  well  as  all  other  points 
to  be  adjusted  between  the  said  parties,  according  to  justice  'and 
mutual  convenience,  and  in  conformity  to  the  intent  of  the  said 
treaty." 

N    B 5  65 


66 

Subsequently,  upon  the  purchase  of  the  Louisiana  Territory  in 
1803,  extending  the  borders  of  the  United  States  beyond  the  Mis 
sissippi  River,  it  became  necessary  to  make  a  further  change  in  the 
description  of  the  northwestern  boundary,  and  an  attempt  was  made 
to  agree  upon  a  description  of  that  portion  of  the  boundary  by  the 
treaty  negotiated  in  1807,  which  failed  of  ratification.  (See  Moore's 
International  Arbitrations,  vol.  i,  pp.  69  and  201,  and  Moore's  In 
ternational  Law  Digest,  Vol.  V,  Ch.  XVIII,  p.  721,  sec.  835.) 

No  mention  of  this  portion  of  the  line  is  made  in  the  Treaty  of 
1814,  but  in  the  Treaty  of  1818  the  boundary  is  fixed  along  the  49th 
parallel  from  the  Lake  of  the  Woods  to  the  "Stony"  (Rocky) 
Mountains,  and  all  reference  to  the  Mississippi  River  as  fixing  the 
location  of  any  portion  of  the  boundary  is  omitted.  It  was  not  defi 
nitely  known  even  then,  however,  whether  the  most  northwestern 
point  of  the  Lake  of  the  Woods,  to  which  the  earlier  treaties  carried 
the  boundary,  was  north  or  south  of  the  49th  parallel,  and  the,  de 
scription  therefore  provided  that  the  line  from  that  point  should  run 
due  north  or  due  south,  as  the  case  might  be,  to  the  49th  parallel, 
and  thence  along  that  parallel  due  west  to  the  "Stony"  (Rocky) 
Mountains.  The  provisions  of  the  Treaty  of  1818  with  respect  to 
this  portion  of  the  boundary  are  found  in  Article  II  and  are  as 
follows: 

"It  is  agreed  that  a  line  drawn  from  the  most  northwestern 
point  of  the  Lake  of  the  Woods,  along  the  forty-ninth  parallel  of 
north  latitude,  or,  if  the  said  point  shall  not  be  in  the  forty-ninth 
parallel  of  north  latitude,  then  that  a  line  drawn  from  the  said  point 
due  north  or  south  as  the  case  may  be,  until  the  said  line  shall  in 
tersect  the  said  parallel  of  north  latitude,  and  from  the  point  of  such 
intersection  due  west  along  and  with  the  said  parallel  shall  be  the 
line  of  demarcation  between  the  territories  of  the  United  States, 
and  those  of  His  Britannic  Majesty,  and  that  the  said  line  shall 
form  the  northern  boundary  of  the  said  territories  of  the  United 
States,  and  the  southern  boundary  of  the  territories  of  His  Britannic 
Majesty,  from  the  Lake  of  the  Woods  to  the  Stony  Mountains." 

In  the  Webster-Ashburton  Treaty  of  1842,  Article  II,  the  latitude 
and  longitude  of  the  most  northwestern  point  of  the  Lake  of  the 
Woods  is  fixed  as  north  of  the  49th  parallel,  and  the  description 
of  the  boundary  from  that  point  is  stated  as  follows,  in  Article  II  of 
that  treaty: 

"Thence,  according  to  existing  treaties,  due  south  to  its  intersec 
tion  with  the  49th  parallel  of  north  latitude,  and  along  that  parallel 
to  the  Rocky  Mountains." 


67 


BOUNDARY  WEST  OF  THE  ROCKY  MOUNTAINS  TO  THE  COAST. 

The  location  of  the  line  west  of  the  Rocky  Mountains  through 
the  Oregon  Territory,  embracing  what  is  now  comprised  in  British 
Columbia  and  the  States  of  Washington,  Oregon,  Idaho,  and  a  part 
of  Montana,  was  dependent  upon  the  settlement  of  the  Oregon  ques 
tion,  which  it  is  not  necessary  to  review  here.  Pending  the  settle 
ment  of  that  question  it  was  provided  by  Article  III  of  the  Treaty 
of  1818  as  follows: 

''It  is  agreed,  that  any  country  that  may  be  claimed  by  either 
party  on  the  northwest  coast  of  America,  westward  of  the  Stony 
Mountains,  shall,  together  with  its  harbours,  bays,  and  creeks,  and 
the  navigation  of  all  rivers  within  the  same,  be  free  and  open,  for 
the  term  of  ten  years  from  the  date  of  the  signature  of  the  present 
convention,  to  the  vessels,  citizens,  and  subjects  of  the  two  Powers: 
it  being  well  understood,  that  this  agreement  is  not  to  be  construed 
to  the  prejudice  of  any  claim,  which  either  of  the  two  high  contract 
ing  parties  may  have  to  any  part  of  the  said  country,  nor  shall  it  be 
taken  to  affect  the  claims  of  any  other  Power  or  State  to  any  part  of 
the  said  country;  the  only  object  of  the  high  contracting  parties, 
in  that  respect,  being  to  prevent  disputes  and  differences  amongst 
themselves." 

This  provision  was  indefinitely  extended  and  continued  in  force 
by  the  Treaty  of  August  6,  1827,  with  the  proviso  that  it  might  be 
annulled  and  abrogated  by  either  party  on  giving  twelve  months' 
notice  to  the  other  party. 

A  brief  statement  of  the  several  attempts  which  were  made  to 
arrive  at  a  settlement  of  the  Oregon  question  and  the  location  of 
this  boundary  will  be  found  in  Moore's  Digest  of  International  Law, 
Volume  V,  Chapter  XVIII,  page  721,  section  835.  (See  also  Moore's 
International  Arbitrations,  vol.  i,  pp.  201-215,  and  the  Oregon 
Question  by  Sir  Travers  Twiss.) 

President  Polk,  in  his  annual  message  on  December  2,  1845, 
recommended  that  the  joint  occupation  of  the  "Oregon  Territory" 
be  terminated.  By  a  joint  resolution  of  Congress  approved  April  27, 
1846,  passed  with  the  view  "that  the  attention  of  the  governments 
of  both  countries  may  be  the  more  earnestly  directed  to  the  adoption 
of  all  proper  measures  for  a  speedy  and  amicable  adjustment  of  the 
.differences  and  disputes  in  regard  to  said  territory,"  the  President 
was  authorized  "at  his  discretion  to  give  to  the  government  of 
Great  Britain  the  notice  required  by  the  second  article  of  the  said 
convention  of  the  sixth  of  August  1827  for  the  abrogation  of  the 
same."  Notice  of  abrogation  was  communicated  to  the  British 
Government  on  May  22,  1846. 


68 

A  settlement  of  the  question,  however,  had  practically  been  agreed 
upon  at  that  time,  and  within  two  months  thereafter  the  Treaty  of 
June  15,  1846,  was  concluded,  carrying  the  boundary  west  of  the 
Rocky  Mountains  along  the  49th  parallel  to  the  middle  of  the  channel 
between  Vancouver's  Island  and  the  mainland,  and  thence  through 
the  middle  of  said  channel  and  of  Fuca's  Straits  to  the  Pacific  Ocean. 

The  provisions  of  the  Treaty  of  June  15,  1846,  on  this  point  are 
as  follows: 

"ARTICLE  i.  From  the  point  on  the  forty-ninth  parallel  of  north 
latitude,  where  the  boundary  laid  down  in  existing  treaties  and  con 
ventions  between  the  United  States  and  Great  Britain  terminates, 
the  line  of  boundary  between  the  territories  of  the  United  States  and 
those  of  her  Britannic  Majesty  shall  be  continued  westward  along 
the  said  forty-ninth  parallel  of  north  latitude  to  the  middle  of  the 
channel  which  separates  the  continent  from  Vancouver's  Island;  and 
thence  southerly  through  the  middle  of  the  said  channel,  and  of 
Fuca's  Straits,  to  the  Pacific  Ocean ;  Provided,  however,  that  the 
navigation  of  the  whole  of  the  said  channel  and  straits,  south  of 
the  forty-ninth  parallel  of  north  latitude,  remain  free  and  open  -to 
both  parties". 

The  treaty  further  provides: 

"ART.  II.  From  the  point  at  which  the  forty-ninth  parallel  of 
north  latitude  shall  be  found  to  intersect  the  great  northern  branch 
of  the  Columbia  River,  the  navigation  of  the  said  branch  shall  be, 
free  and  open  to  the  Hudson's  Bay  Company,  and  to  all  British  sub 
jects  trading  with  the  same,  to  the  point  where  the  said  branch 
meets  the  main  stream  of  the  Columbia,  and  thence  down  the  said 
main  stream  to  the  ocean,  with  free  access  into  and  through  the 
said  river  or  rivers,  it  being  understood  that  all  the  usual  portages 
along  the  line  thus  described  shall,  in  like  manner,  be  free  and  open. 
In  navigating  the  said  river  or  rivers,  British  subjects,  with  their 
goods  and  produce,  shall  be  treated  on  the  same  footing  as  citizens 
of  the  United  States;  it  being,  however,  always  understood  that 
nothing  in  this  article  shall  be  construed  as  preventing,  or  intended 
to  prevent,  the  Government  of  the  United  States  from  making  any 
regulations  respecting  the  navigation  of  the  said  river  or  rivers  not 
inconsistent  with  the  present  treaty." 

Demarcation  of  the  land  boundary  west  of  the  Rocky  Mountains. 

For  reasons  which  need  not  be  detailed  here  no  joint  action  was 
taken  by  the  two  Governments  for  surveying  and  monumenting  the 
northern  boundary  between  the  Pacific  and  the  Lake  of  the  Woods 
until  1856,  and  then  the  demarcation  of  that  portion  of  the  line  west 
of  the  Rocky  Mountains  only  was  undertaken. 

After  a  lapse  of  almost  exactly  ten  years  since  the  making  of 
the  Treaty  of  June  15,  1846,  fixing  the  location  of  the  line  west  of  the 
Rocky  Mountains  Congress  passed  an  act,  approved  August  n, 


69 

1856,  to  carry  into  effect  the  first  article  of  the  treaty  referred  to. 
This  act  provided  for  the  appointment  of  a  commissioner  and  a 
chief  astronomer  and  surveyor  on  the  part  of  the  United  States  to 
unite  with  similar  officers  to  be  appointed  by  Her  Britannic  Majesty's 
Government,  to  survey  and  monument  the  boundary,  and  an  appro 
priation  of  $71,000  was  made  for  that  purpose.  The  proceedings 
of  the  Commission  were  limited  to  the  demarcation  of  that  part  of 
the  line  which  forms  the  boundary  between  Washington  Territory 
and  the  British  possessions.  At  that  time  the  Territory  of  Wash 
ington,  which  was  organized  by  act  of  Congress  approved  March  2, 
1853,  extended  along  the  49th  parallel  to  the  summit  of  the  Rocky 
Mountains.  (Sec.  1898,  U.  S.  Rev.  Stat.) 

The  Commission  on  the  part  of  the  United  States  was  promptly 
organized  under  this  law,  and  on  February  14,  1857,  Mr.  Archibald 
Campbell  was  appointed  Commissioner,  which  position  he  held  con 
tinuously  until  the  close  of  the  work  of  the  Commission  in  1869. 

Great  Britain  assented  to  the  proposition  for  a  joint  commission, 
but  owing  to  some  delay  in  the  appointment  of  the  British  Commis- 
^sioner  joint  operations  were  not  commenced  until  the  summer  of  1858. 

The  boundary  as  laid  down  from  the  surveys  of  this  Commission 
is  shown  on  a  series  of  maps,  seven  in  number,  with  an  index  map, 
one  duplicate  original  set  of  which  is  on  file  in  the  Department  of 
State  at  Washington.  These  maps  are  dated  May  7,  1869,  and  are 
signed  by  the  Commissioners  and  surveyors  of  the  respective  Gov 
ernments.  A  photolithographic  reproduction  of  these  maps  has 
been  made  and  a  small  edition  of  such  reproduction  printed. 

On  February  24,  1870,  Mr.  Fish,  the  Secretary  of  State,  and 
Sir  E.  Thornton,  the'  British  minister  at  Washington,  joined  in  a 
written — 

"Declaration  approving  and  adopting  the  maps  prepared  by  the 
Joint  Commission  of  the  Northwest  Boundary  for  surveying  and 
marking  the  Boundaries  between  the  British  possessions  and  the 
United  States  along  the  49th  Parallel  of  North  Latitude,  under  the 
first  article  of  the  Treaty  of  i5th  June,  1846." 

This  declaration  states: 

"  The  set  of  maps,  seven  in  number,  which  have  been  prepared  by 
the  Commissioners  appointed  by  the  two  Powers  to  survey  and  mark 
out  the  Boundary  between  their  respective  Territories  under  the  first 
Article  of  the  Treaty  concluded  between  them  at  Washington  on  the 
i5th  of  June,  1846,  having  been  produced: 

"And  it  appearing  that  they  do  correctly  indicate  the  said 
Boundary  from  the  point  where  the  Boundary  laid  down  in  Treaties 
and  Conventions  prior  to  June  i5th,  1846,  terminates  Westward  on 
the  49th  Parallel  of  North  Latitude  to  the  Eastern  shore  of  the  Gulf 
of  Georgia,  which  Boundary  has  been  defined  by  the  Commissioners 
by  marks  upon  the  ground: 


;o 

"The  Undersigned,  without  prejudice  to  the  rights  of  their 
respective  Governments  as  to  the  settlement  and  the  determination 
of  the  remainder  of  the  said  Boundary,  hereby  declare  that  the  said 
maps  certified  and  authenticated  under  the  signatures  of  Archibald 
Campbell,  Esquire,  the  Commissioner  of  the  United  States,  and 
of  Colonel  John  Summerfield  Hawkins,  Her  Britannic  Majesty's 
Commissioner,  and  of  which  duplicate  copies  similarly  certified  and 
authenticated  are  in  the  possession  of  the  Government  of  Her 
Britannic  Majesty  have  been  duly  examined  and  considered,  and, 
as  well  as  the  marks  by  which  the  Boundary  to  the  Eastern  shore  of 
the  Gulf  of  Georgia  has  been  defined  upon  the  ground,  are  approved, 
agreed  to,  and  adopted  by  both  Governments." 

In  addition  to  these  treaty  maps  there  is  also  on  deposit  in  the 
Department  of  State  an  atlas  presented  on  June  23,  1871,  by  Sir 
Edward  Thornton,  then  British  minister  in  Washington,  containing 
"maps  of  the  land  boundary  between  the  British  possessions  in 
North  America  and  the  United  States  as  established  by  the  Treaty 
of  Washington,  i5th  June,  1846,  and  surveyed  and  marked  under 
the  direction  of  the  Joint  Commission  appointed  to  carry  into  effect 
the  first  article  of  the  treaty,"  etc. 

The  records  of  the  work  and  proceedings  of  this  Commission,  so 
far  as  they  have  been  preserved,  consisting  of  manuscript,  maps, 
computations,  observations,  sketches,  notes,  minutes,  etc.,  are  also  on 
deposit  in  the  Department  of  State,  but  as  a  history  of  the  progress 
of  its  work  they  are  somewhat  incomplete.  A  report  was  made  by 
the  Commissioner  on  the  part  of  the  United  States,  but  this  report 
was  not  published,  and  it  has  now  disappeared  from  the  records  in 
the  Department  of  State  and  no  trace  of  it  can  be  found.  No  copy 
of  this  report  has  been  preserved.  (Letter  of  April  9,  1901,  from 
Secretary  Hay  to  Superintendent  of  the  United  States  Coast  and 
Geodetic  Survey.)  A  concise  history,  however,  of  the  establishment, 
survey,  and  marking  of  this  portion  of  the  boundary,  with  a  summary 
of  results,  was  prepared  by  Mr.  Marcus  Baker,  of  the  United  States 
Geological  Survey,  in  the  year  1900,  from  an  examination  of  all 
the  available  records,  "memoranda,  notes,  sketches,  pictures,  corre 
spondence,  and  memories  of  men  still  living,"  and  has  been  published 
as  Bulletin  No.  174  of  the  United  States  Geological  Survey,  under  the 
title  "Survey  of  the  Northwestern  Boundary  of  the  United  States." 

The  boundary  marks  and  monuments. 

The  records  of  the  Commission  show  that  at  the  outset  the  Com 
missioners  entered  into  the  following  agreement: 

"After  discussing  plans  for  determining  and  marking  the  line  as 
far  eastward  as  the  Cascade  Mountains,  it  was  concluded  to  be  inex 
pedient  at  the  present  time,  in  consequence  of  the  great  expense, 


consumption  of  time,  and  the  impracticable  nature  of  the  country, 
to  mark  the  whole  boundary  by  cutting  a  track  through  the  dense 
forest. 

"  It  was  therefore  agreed  to  ascertain  points  on  the  line  by  the 
determination  of  astronomical  points  at  convenient  intervals  on  or 
near  the  boundary,  and  to  mark  such  astronomical  stations  or  points 
fixed  on  the  parallel  forming  the  boundary  by  cutting  a  track  of 
not  less  than  20  feet  in  width  on  each  side  for  the  distance  of  half  a 
mile  or  more,  according  to  the  circumstances.  Further,  that  the 
boundary  be  determined  and  similarly  marked  where  it  crosses 
streams  of  any  size,  permanent  trails,  or  any  striking  natural  feature 
of  the  country. 

"In  the  vicinity  of  settlements  on  or  near  the  line  it  is  deemed 
advisable  to  cut  the  track  for  a  greater  distance  and  to  mark  it  in  a 
manner  to  be  determined  hereafter." 

With  respect  to  this  agreement,  Mr.  Baker  says  in  his  pamphlet: 

"This  arrangement  for  the  part  west  of  the  Cascades  appears  to 
have  been  subsequently  applied  to  the  whole  line;  and  thus  it  re 
sulted  that  of  the  entire  boundary,  409.5  miles  long,  from  the  bound 
ary  station  on  the  crest  of  the  Rocky  Mountains  westward  to  the 
obelisk  on  the  western  side  of  Point  Roberts,  190  miles  were  cleared 
and  marked  and  220  miles  were  not  traced  out,  cleared,  surveyed,  or 
marked.  These  figures  are  obtained  by  scaling  off  from  the  final 
maps." 

The  initial  monument  of  the  line  thus  marked  was  a  granite  obe 
lisk  erected  at  Point  Roberts  on  the  eastern  shore  of  the  Gulf  of 
Georgia  and  the  terminal  monument  was  a  stone  pyramid  erected  on 
the  crest  of  the  Rocky  Mountains  "in  a  spot  very  difficult  of  access, 
and  therefore  better  adapted  to  preserve  it  from  being  disturbed." 

Between  these  points,  distant  410  miles  apart,  the  line  was  marked 
by  161  monuments  of  iron  pillars,  stone  obelisks  or  pyramids,  bench 
marks,  earth  mounds,  or  piles  of  stone  and  earth.  The  distance  be 
tween  these  monuments  varies  somewhat,  depending  upon  the  char 
acter  and  requirements  of  the  country. 

From  the  records  of  this  Commission  it  appears  that  the  amount 
actually  expended  by  the  United  States  for  the  demarcation  of  this 
line  amounted  to  nearly  $600,000,  or  about  $1,463  per  mile.  See 
appropriation  acts  as  follows: 

Act  of  August  n,  1856,  U.  S.  Stat.  at  Large,  vol.  n,  p.  42. 

Act  of  February  7,  1857  (id),  p.  159. 

Act  of  June  5,  1858  (id],  p.  312. 

Act  of  March  3,  1859  (id),  p.  403. 

Act  of  May  26,  1860  (id),  vol.  12,  p.  20. 

The  cost  to  the  British  Government  of  running  and  marking  the 
line  does  not  appear. 


72 

In  a  letter  from  the  British  Commissioner,  J.  S.  Hawkins,  to  the 
British  Secretary  of  State  for  Foreign  Affairs,  dated  May  10,  1869, 
he  describes  the  actual  demarcation  of  the  boundary  line  as  follows: 

"5.  The  actual  demarcation  was  effected  as  follows:  The  west 
ern  extremity  of  the  boundary  is  marked  by  a  substantial  granite 
obelisk  in  west  longitude  123°  3'  53",  which  stands  upon  a  steep  cliff 
on  the  western  face  of  the  promontory  of  Point  Roberts,  about  160 
feet  above  the  sea.  The  several  faces  of  the  obelisk  are  inscribed  as 
follows:  On  the  north  face  with  the  names  of  Her  Majesty's  water 
and  land  boundary  Commissioners,  Captn.  J.  C.  Prevost  and  G.  H. 
Richards,  R.  N.,  and  Lieut.  Colonel  J.  S.  Hawkins,  R.  E.  ;  on  the 
south  face  with  the  name  of  the  American  Commissioner,  Archibald 
Campbell;  on  the  west  face  with  the  designation  and  date  of  the 
treaty,  viz,  Treaty  of  Washington,  i5th  June,  1846,  and  on  the  east 
face  with  the  latitude  and  longitude,  and  the  year  of  erection,  viz: 
Latitude  49°  o'  o"  N.,  longitude  123°  3'  53"  W.,  erected  1861.  For 
44T8o-  miles  eastward  there  are  42  iron  pillars  placed  at  points  on  the 
boundary  which  the  officer  to  whom  the  duty  was  entrusted  thought 
most  suitable  and  convenient.  One  pillar  stands  on  the  eastern  face 
of  Point  Roberts,  2  miles  704  yards  from  the  obelisk,  and  there  are 
two  intermediate  pillars  in  the  interval  at  average  distances  apart  of 
somewhat  more  than  f  mile.  A  pillar  on  the  west  shore  of  Semi- 
ahmoo  Bay  is  12  m.  1177  yards  from  that  on  Point  Roberts  on  the 
opposite  side  of  the  bay;  and  thence  in  29!-  miles  to  the  easternmost 
pillar  the  average  distance  apart  is  about  1,380  yards,  varying 
between  one  mile  1,245  yards  and  198  yards  on  the  opposite  banks  of 
the  Sumass  River.  These  pillars  all  stand  in  a  continuous  cutting 
through  the  forest  or  in  intervening  patches  of  swamp  and  prairie. 
From  the  easternmost  iron  pillar  to  the  right  or  west  bank  of  the 
Similkameen  River,  in  io7T9¥  miles,  the  boundary  is  defined  in  the 
vicinity  of  9  astronomical  stations  by  19  cairns  or  pyramids  built  of 
dry  stones  as  carefully  as  the  materials  and  circumstances  would 
permit,  and  one  bench  mark  cut  on  the  face  of  a  rock  (at  Ensak- 
watch) ;  and  at  several  stations  short  vistas  were  also  cut  in  the  for 
est,  between  the  cairns.  This  wide  interval  comprises  the  rugged 
and  inhospitable  region  of  the  Cascade  Mountains,  in  which  it  would 
only  have  been  possible  to  mark  the  boundary  line  more  continuously 
by  an  expenditure  of  time  and  money  out  of  all  proportion  to  the 
object  in  view.  One  of  the  widest  unmarked  intervals  on  the  bound 
ary  occurs  in  these  mountains,  between  Passayten  and  Naisnuloh, 
the  distance  between  the  marked  points  being  23^  miles;  and  this 
might  have  been  obviated  by  placing  a  station  on  the  main  or  west 
ern  branch  of  the  Naisnuloh  River,  which,  however,  would  have 
prolonged  the  work  of  the  British  Commission  by  another  season. 

"From  a  cairn  at  the  foot  of  the  mountains  on  the  west  side  of 
the  Similkameen  River  to  the  east  or  left  bank  of  the  Columbia,  the 
boundary  for  the  95  miles  is  well  and  continuously  marked  by  69 
stone  cairns  and  one  mound  of  earth,  and  by  forest  cuttings  in  all 
necessary  cases.  This  was  the  most  favourable  portion  of  the  work, 
part  of  the  line  passing  over  rolling  prairie  country  interspersed  with 
wood ;  but  very  considerable  portions  were  also  mountainous,  rugged, 
and  heavily  timbered,  though  more  accessible  from  the  valley  of  the 


73 

Newhoialpitkwn  River  than  were  the  Cascade  Mountains.  Two 
cairns  stand  within  129  yards  of  each  other  on  the  east  bank  of  the 
Columbia  River  (one  having  been  placed  by  each  Commission)  and 
the  average  distance  apart  of  the  remainder  is  i  mile  679  yards. 
From  the  hill  tops  the  line  of  boundary  denned  by  the  cairns  and 
cuttings  can  be  traced  for  many  miles. 

"For  the  remaining  161^  miles  between  the  eastern  cairn  on 
the  left  bank  of  the  Columbia  River  and  the  terminal  point  on  the 
watershed  of  the  Rocky  Mountains  in  west  longitude  114°  3'  28"  the 
boundary  passes  over  successive  mountain  ranges  intersected  only 
by  the  valley  of  the  Kootenay  River  at  two  points  75!-  miles  apart, 
and  by  the  adjacent  valleys  of  the  Flathead  River  and  its  tributary 
Kishenehu  Creek,  by  which  alone  the  49th  parallel  is  practically 
accessible,  though  even  then  by  long  circuitous  routes.  This  por 
tion  of  the  line  is  marked  in  the  vicinity  of  9  astronomical  stations 
by  26  cairns  and  one  bench  mark  cut  in  the  face  of  a  rock  at  the 
Kootenay  Mtn.  station,  and  by  a  cairn  fixed  by  survey  on  the  trail 
between  Kootenay  West  and  Mooyie  stations;  and  the  usual  forest 
vistas  were  cut  at  the  several  defined  points,  besides  longer  cuttings 
of  10  and  7  miles  at  the  eastern  crossing  of  the  Kootenay,  and  be 
tween  the  Flathead  and  Kishenehu  rivers.  No  better  means  for 
marking  the  eastern  end  of  the  boundary  were  at  command  than 
by  a  dry  stone  pyramid  of  the  usual  description,  which  was  built  as 
carefully  as  possible,  and  which  maybe  preserved  for  many  years 
by  its  protected  situation  on  a  narrow  saddle  with  precipitous  sides 
connecting  two  lofty  mountains,  which  position  will  moreover  serve 
to  identify  the  approximate  locality  of  the  boundary  at  any  future 
time.  Between  the  Columbia  and  the  Rocky  Mountains,  exclusive 
of  the  Mooyie  trail  cairn,  and  the  intervals  between  Kootenay 
Mountain  and  Kootenay  West  stations  and  Mooyie  and  Yahk  sta 
tions,  the  distances  between  the  consecutively  marked  points  at  the 
several  astronomical  stations  average  about  13^  miles;  but  between 
the  stations  named  they  extend  to  25  and  24  miles,  owing  to  the 
inaccessible  nature  of  the  intervening  country,  which  is  quite  as  bad 
as  the  Cascade  Mountains. 

"6.  Having  thus  described  the  manner  in  which  the  land  bound 
ary  has  been  marked  from  end  to  end,  I  respectfully  request  your 
lordship's  consideration  of  the  3rd  article  of  the  closing  protocol, 
by  which  the  Commissioners  agreed  to  understand  the  boundary 
laid  out  by  them  to  consist  of  a  series  of  straight  lines  between  the 
successively  marked  points,  without  regard  to  the  distances  between 
those  points  or  the  curve  of  the  parallel  in  the  longer  intervals. 
We  were  induced  to  do  this  upon  the  consideration  that  it  was  of 
the  greatest  importance  nothing  should  be  left  i®v  future  discussion 
or  settlement,  and  that  our  operations  should  be  final  and  con 
clusive.  Even  had  the  boundary  line  been  continuously  marked 
throughout  by  defined  points,  at  say  a  mile  apart,  the  actual  parallel 
would  have  been  departed  from  by  the  straight  lines  or  chords  join 
ing  such  lines  upon  it;  and  owing  to  the  insuperable  difficulties 
attending  a  more  minute  demarcation  in  the  rugged  country  trav 
ersed  by  us  we  have  been  compelled  to  adopt  a  more  irregular  and 
longer-sided  polygon  than  we  should  have  wished.  I  may  state  that 
opposite  the  centre  of  a  chord  of  25  miles  in  length  the  departure 


74 

from  the  4gth  parallel  would  be  about  40  yards,  and  of  12  miles  9 
yards,  which  in  such  country  and  under  present  circumstances  is  of 
no  appreciable  value,  and  this  even  would  be  materially  affected  by 
the  very  great  uncertainty  attending  the  precision  of  the  astronomical 
results  previously  alluded  to;  so  that  I  hope  our  definite  action  in 
the  matter  will  be  fully  approved.  The  points  being  identified,  they 
can  be  joined  at  any  time  with  no  greater  difficulty  than  attends  the 
running  of  a  straight  line  between  two  fixed  points  over  a  rough 
country,  and  sometimes  for  a  considerable  distance,  but  no  scientific 
question  would  be  involved  in  the  operation,  which  could  be  per 
formed  by  any  careful  surveyor." 

In  the  same  letter  he  renewed  a  suggestion  which  was  made  by 
him  in  an  earlier  letter  to  the  Secretary  of  State  for  Foreign  Affairs, 
dated  August  4,  1862,  which  suggestion  as  made  in  the  later  letter 
is  as  follows: 

"7.  The  above  remarks  lead  me  to  request  your  lordship's  further 
consideration  of  the  necessity  of  entering  into  a  convention  with  the 
United  States,  supplementary  to  the  treaty  of  the  i5th  June,  1846, 
declaratory  of  the  boundary  marked  out  by  the  Joint  Commission, 
being  the  boundary  of  the  treaty,  notwithstanding  any  possible  de 
partures  from  the  actual  line  of  the  forty-ninth  parallel.  The  more 
than  probability  that  such  departures  unavoidably  exist  is  alluded 
to  above,  and  in  previous  reports;  and  the  necessity  for  a  supple 
mentary  convention  was  suggested  by  me  in  the  concluding  para 
graph  of  rny  letter  No.  28  of  the  4th  August,  1862,  and  recognized 
by  Her  Majesty's  government  in  a  letter  from  the  treasury  to  Mr. 
Hammond,  dated  26th  September,  1862." 

The  protocol  of  the  closing  sessions  of  the  Joint  Commission, 
which  is  signed  under  the  date  of  May  7,  1869,  by  both  Commis 
sioners,  contains  the  following  recitals: 

"i.  The  astronomical  and  geodetical  determinations  of  the  sev 
eral  astronomical  stations,  and  of  the  points  on  the  forty-ninth  par 
allel  of  north  latitude  by  which  the  boundary  has  been  defined 
between  its  western  terminus  at  Point  Roberts  in  west  longitude  123° 
3'  53"  and  its  eastern  terminus  on  the  watershed  of  the  Rocky  Moun 
tains  in  west  longitude  114°  3'  28",  agreed  upon  and  exchanged  in 
May,  1863,  between  Captain  R.  W.  Haig,  R.  A.,  chief  astronomer  of 
the  British  commission,  and  G.  Clinton  Gardner,  assistant  astrono 
mer  and  surveyor  to  the  United  States  Commission,  having  been 
carefully  compared  and  corrected,  are  finally  adopted,  and  lists  of 
them  are  countersigned  (2)  and  hereunto  attached. 

"  2.  The  two  sets  of  seven  maps  prepared  severally  by  the  respec 
tive  commissions  upon  the  above-named  data  on  a  scale  of  i  :i2o,ooo, 
having  been  carefully  compared  and  countersigned,  are  hereby  de 
clared  to  represent  so  much  of  the  boundary  described  in  the  first 
article  of  the  treaty  between  Her  Britannic  Majesty  and  the  United 
States  of  America,  dated  i5th  June,  1846,  as  is  comprised  between 
the  intersection  of  the  watershed  of  the  Rocky  Mountains  by  the 
forty-ninth  parallel  of  north  latitude  in  west  longitude  114°  3'  28" 


75 

and  the  point  at  which  the  49th  parallel  of  north  latitude  strikes  the 
eastern  shore  of  the  channel  which  separates  the  continent  from 
Vancouver's  Island  in  west  longitude  123°  3'  53". 

"3.  It  is  agreed  by  the  Commissioners  that,  between  any  two 
successive  defined  points  marked  on  the  ground  shown  on  the  maps, 
and  set  forth  in  the  accompanying  lists,  the  line  of  boundary  above 
described  is  to  be  understood  to  be  a  right  or  straight  line;  and  that 
this  rule  is  to  apply  throughout  the  entire  boundary  without  regard 
to  the  distances  between  the  consecutive  points  or  to  the  course  of 
the  parallel  in  such  intervals." 


THE  WATER  BOUNDARY  FROM  THE  FORTY-NINTH  PARALLEL  OF 
NORTH  LATITUDE  WHERE  IT  STRIKES  THE  GULF  OF  GEORGIA 
TO  THE  PACIFIC  OCEAN. 

This  portion  of  the  boundary  is  described  in  the  Treaty  of  1846 
as  follows: 

"thence  southerly  through  the  middle  of  the  said  channel,  and  of 
Fuca's  Straits,  to  the  Pacific  Ocean:  Provided,  however,  that  the 
navigation  of  the  whole  of  the  said  channel  and  straits,  south  of 
the  forty-ninth  parallel  of  north  latitude,  remain  free  and  open  to 
both  parties." 

Just  below  the  Gulf  of  Georgia,  as  the  channel  between  Van 
couver's  Island  and  the  mainland  is  now  called,  there  lies  an  archi 
pelago  among  the  islands  of  which  there  are  several  channels  which 
connect  the  waters  of  the  Gulf  of  Georgia  with  the  Strait  of  Juan  de 
Fuca.  Almost  immediately  after  the  Treaty  of  1846  was  made  doubt 
arose  as  to  the  course  of  the  boundary  through  these  several  chan 
nels.  The  respective  positions  of  the  two  Governments  on  this 
question  and  the  course  of  the  negotiations  for  its  adjustment  are 
stated  at  length  in  Moore's  International  Arbitrations,  volume  i, 
pages  213-224. 

It  seems  that  at  the  time  when  the  treaty  was  made  only  two  of 
these  channels  had  been  surveyed  and  marked.  These  were  known 
as  Canal  de  Haro  and  a  channel  to  the  east  known  as  Rosario  Strait. 
On  the  part  of  Great  Britain  it  was  claimed  that  the  boundary  should 
run  through  this  latter  channel,  which  was  the  most  easterly  of  all 
the  connecting  channels,  and  on  the  part  of  the  United  States  it 
was  claimed  that  the  Canal  de  Haro,  the  most  westerly,  was  the 
course  intended. 

An  unsuccessful  attempt  was  made  to  settle  the  disagreement 
between  the  two  countries  on  this  point  by  the  appointment  of  a 
Joint  Commission  for  running  the  line.  This  Commission  was  ap 
pointed  concurrently  with  the  Commission  for  marking  the  land 
portion  of  the  boundary  under  the  Treaty  of  1846,  but  the  Commis 
sioners  were  unable  to  agree.  The  American  Commissioner  refused 
to  accept  any  other  channel  than  the  Canal  de  Haro,  and  rejected  a 


76 

compromise  offer  of  an  intermediate  channel  proposed  by  Great 
Britain. 

During  the  succeeding  years  negotiations  for  the  settlement  of 
this  boundary  dragged  along  without  much  advancement,  and  there 
being  no  prospect  of  an  agreement  Great  Britain  finally  proposed 
arbitration  by  the  King  of  the  Netherlands,  the  King  of  Sweden 
and  Norway,  or  the  President  of  Switzerland.  This  proposition 
was  not  accepted  by  the  United  States. 

In  1869  a  convention  between  the  two  countries  was  concluded 
for  the  submission  of  the  boundary  question  to  arbitration  by  the 
President  of  the  Swiss  Confederation,  but  was  not  approved  by  the 
United  States  Senate.  The  question  was  still  open,  therefore,  when 
the  Joint  High  Commission  between  the  United  States  and  Great 
Britain  met  in  Washington  in  1871  and  was  taken  up  at  that  time. 

By  Articles  XXXIV-XLII  of  the  Treaty  of  1871,  agreed  upon  by 
that  Commission,  the  question  was  referred  to  arbitration  by  the 
Emperor  of  Germany  to  decide  finally  and  without  appeal  which  of 
the  respective  claims  was  most  in  accordance  with  the  true  interpre 
tation  of  the  Treaty  of  June  15,  1846.  The  German  Emperor  ac 
cepted  the  office  of  arbitrator.  George  Bancroft,  then  United  States 
minister  at  Berlin,  was  detailed  to  represent  the  United  States,  and 
Admiral  James  C.  Prevost  was  appointed  to  represent  Great  Britain 
on  this  arbitration.  The  positions  and  arguments  on  the  part  of  the 
two  countries  do  not  require  an  examination  for  the  purposes  of  thi's 
report.  They  will  be  found  stated  at  length  in  Moore's  International 
Arbitrations,  volume  i,  pages  224-235.  The  award  of  the  German 
Emperor  was  made  on  October  21,  1872.  It  recites  that  after  an 
examination  of  the  treaty  and  the  evidence  and  arguments,  etc. — 

"most  in  accordance  with  the  true  interpretation  of  the  treaty  con 
cluded  on  the  i5th  of  June,  1846,  between  the  governments  of  Her 
Britannic  Majesty  and  of  the  United  States  of  America  is  the  claim 
of  the  Government  of  the  United  States  that  the  boundary  line  be 
tween  the  territories  of  Her  Britannic  Majesty  and  the  United  States 
should  be  drawn  through  Haro  Channel." 

By  a  protocol  signed  March  10,  1873,  by  Hamilton  Fish,  Secre 
tary  of  State,  Sir  Edward  Thornton,  British  minister  to  the  United 
States,  and  Admiral  Prevost,  the  boundary  Commissioner  on  the 
part  of  Great  Britain,  the  line  as  finally  fixed  and  determined  was 
fully  defined  and  described  in  detail.  It  was  also  marked  on  four 
identical  charts  prepared  for  the  purpose,  which  were  duly  signed 
and  two  were  retained  by  each  Government.  The  two  retained  by 
the  United  States  are  deposited  in  the  Department  of  State.  A  re 
production  of  the  charts  is  published,  together  with  the  protocol,  in 
Foreign  Relations,  1873,  Volume  I,  page  xxv.  (See  also  Moore's 
International  Arbitrations,  vol  i,  p.  231.) 


77 


SURVEYING    AND    MARKING    THE    BOUNDARY    FROM   THE    LAKE  OF 
THE  WOODS  TO  THE  ROCKY  MOUNTAINS. 

Under  the  Treaty  of  1818  the  49th  parallel  of  north  latitude  was 
agreed  upon  as  the  boundary  between  the  Lake  of  the  Woods  and 
the  Rocky  Mountains,  and  in  the  Treaty  of  1842  the  actual  loca 
tion  of  the  northwest  corner  of  the  Lake  of  the  Woods  was  fixed 
as  north  of  the  49th  parallel  and  the  direction  of  the  line  from  that 
point  to  such  parallel  was  determined. 

No  joint  action  for  the  physical  demarcation  of  this  portion  of 
the  boundary,  however,  was  taken  by  the  two  Governments  until 
1872,  when  Congress  passed  an  act,  approved  March  19  of  that  year, 
authorizing  the  President  to  cooperate  with  the  Government  of  Great 
Britain  in  the  appointment  of  a  joint  commission  to  survey  and  mark 
this  portion  of  the  line.  With  the  cooperation  of  Great  Britain 
the  joint  commission  authorized  under  this  act  was  soon  thereafter 
organized.  Archibald  Campbell  was  appointed  Commissioner  on 
the  part  of  the  United  States  and  D.  R.  Cameron,  Major,  R.  A.,  was 
appointed  Commissioner  on  the  part  of  Great  Britain.  The  chief 
astronomer  of  the  Commission  on  the  part  of  the  United  States  was 
Maj.  F.  W.  Farquhar,  afterwards  succeeded  by  Maj.  W.  J.  Twining, 
and  on  the  part  of  Great  Britain  Capt.  S.  Anderson,  of  the  Royal 
Engineers. 

The  first  meeting  of  the  Joint  Commission  took  place  in  Septem 
ber,  1872,  and  the  final  meeting  was  held  at  London,  May  29,  1876. 
The  protocol  of  this  final  meeting  sets  forth  the  following  statement 
showing  the  outcome  of  the  work  of  the  Commission,  the  list  of 
official  documents  and  records  prepared  and  filed  by  the  Commission 
and  the  disposition  made  of  them,  the  method  pursued  in  deter 
mining  the  location  of  the  line,  and  the  method  to  be  pursued  in 
relocating  any  portion  of  the  line  in  case  of  the  loss  or  obliteration 
of  any  of  the  boundary  monuments: 

"i.  The  chief  astronomers  submit  the  following  documents  and 
maps: 

"#.  A  detailed  list  in  duplicate  of  forty  astronomical  stations,  in 
addition  to  one  for  the  location  of  the  most  northwestern  point  of 
the  Lake  of  the  Woods,  at  which  observations  were  taken  under 
their  superintendence,  to  determine  the  line  described  in  the  second 
article  of  the  convention  of  London  (signed  October  20,  1818), 
between  the  terminal  points,  viz,  the  most  northwestern  point  of 
the  Lake  of  the  Woods  and  the  eastern  end  of  the  international 
boundary-line  previously  marked  between  Akamina,  in  the  Rocky 
Mountains,  and  the  western  coast  of  North  America. 

"  b.  A  descriptive  list  in  duplicate  of  three  hundred  and  eighty- 
eight  (388)  monuments  and  marks  placed  on  the  boundary-line,  as  de 
rived  from  the  astronomical  stations  enumerated  in  the  list  referred 
to  in  section  a  of  this  paragraph. 


78 

"  c.  A  duplicate  set  of  twenty-four  maps  on  a  scale  of  -j-jnfWiF»  or 
i  inch  to  2  miles,  illustrating  the  topography  of  the  country  through 
which  the  boundary-line  runs,  and  indicating  the  relative  positions 
of  the  various  monuments  and  marks  referred  to  in  section  b  of  this 
paragraph. 

"2.  The  second  article  of  the  convention  of  London,  signed  2oth 
October,  1818,  is  read,  as  follows: 

"'  It  is  agreed  that  a  line  drawn  from  the  most  northwestern  point 
of  the  Lake  of  the  Woods,  along  the  forty-ninth  parallel  of  north 
latitude,  or  if  the  said  point  shall  not  be  in  the  forty-ninth  parallel 
of  north  latitude,  then  that  a  line  drawn  from  the  said  point  due 
north  or  south,  as  the  case  may  be,  until  the  said  line  shall  intersect 
the  said  parallel  of  north  latitude,  and  from  the  point  of  such  inter 
section  due  west,  along  and  with  the  said  parallel,  shall  be  the  line 
of  demarkation  between  the  territories  of  His  Britannic  Majesty 
and  those  of  the  United  States,  and  that  the  said  line  shall  form  the 
southern  boundary  of  the  said  territories  of  his  Britannic  Majesty 
and  the  northern  boundary  of  the  territories  of  the  United  States, 
from  the  Lake  of  the  Woods  to  the  Stony  Mountains.' 

"The  duplicate  documents  and  maps  enumerated  in  paragraph 
numbered  i — one  set  for  each  of  the  respective  governments — hav 
ing  been  examined  and  compared,  are  authenticated  by  the  signa 
tures  of  the  commissioners,  who  agree  as  follows: 

"i.  The  three  hundred  and  eighty-eight  monuments  detailed  in 
the  list  referred  to  in  section  b  of  paragraph  numbered  i,  are  on  and 
mark  the  astronomical  lines  stipulated  by  the  second  article  of  the 
convention  of  London  (signed  October  20,  1818)  to  be  the  line  of 
boundary  between  the  territories  of  Her  Britannic  Majesty  and  of 
the  United  States  of  America,  from  the  Lake  of  the  Woods  to  the 
Stony  (i.  e.  Rocky)  Mountains. 

"2.  In  the  intervals  between  the  monuments  along  the  parallel 
of  latitude,  it  is  agreed  that  the  line  has  the  curvature  of  a  parallel  of 
49°  north  latitude;  and  that  such  characteristic  shall  determine  all 
questions  that  may  hereafter  arise  with  reference  to  the  position  of 
the  boundary  at  any  point  between  neighboring  monuments. 

"3.  It  is  further  agreed  that,  in  the  event  of  any  of  the  said 
three  hundred  and  eighty-eight  monuments  or  marks  being  oblit 
erated  beyond  the  power  of  recognition,  the  lost  site  or  sites  shall 
be  recovered  by  their  recorded  position  relatively  to  the  next  neigh 
boring  unobliterated  mark  or  marks."  (S.  Ex.  Doc.  No.  41,  44th 
Cong.,  2d  sess.) 

The  duplicate  original  set,  belonging  to  the  United  States,  of  the 
twenty-four  sectional  maps  covering  this  portion  of  the  boundary, 
which  were  prepared  and  filed  by  the  Commission  as  above  stated, 
is  now  among  the  other  sets  of  treaty  maps  in  the  Department  of 
State.  A  photolithographic  reproduction  of  these  maps  has  since 
been  published  by  this  Government. 

No  joint  report  was  made  by  the  Commissioners,  but  separate 
reports  by  the  Commissioner  and  the  chief  astronomer  on  the  part  of 
the  United  States  were  made  to  this  Government,  and  these  reports, 


79 

together  with  the  other  official  records  of  the  proceedings  of  the 
Commission  on  the  part  of  the  United  States,  on  file  in  the  Depart 
ment  of  State,  were  communicated  to  Congress  by  President  Grant 
in  a  special  message,  dated  February  23,  1877,  and  will  be  found 
printed  in  Senate  Executive  Document  No.  41,  Forty-fourth  Con 
gress,  second  session.  These  reports  and  records  were  afterwards 
reprinted  in  enlarged  form,  with  illustrations  and  maps,  and  pub 
lished  by  the  United  States  Government  in  accordance  with  an  act 
of  Congress  approved  March  3,  1877. 

SUBSEQUENT  NEGOTIATIONS  AND  ARRANGEMENTS  FOR  RE-MARK 
ING  THE  LINE  FROM  THE  LAKE  OF  THE  WOODS  TO  THE  PACIFIC 
OCEAN. 

The  question  of  the  more  complete  definition  and  marking  of  the 
entire  boundary  between  the  United  States  and  Canada  wherever  it 
was  insufficiently  defined  was  one  of  the  subjects  submitted  to  the 
Joint  High  Commission  in  1898-99  for  settlement,  but  the  further 
demarcation  of  this  particular  portion  of  the  line  did  not  come  up  for 
consideration  at  that  time.  Soon  after  the  adjournment  of  the  Joint 
High  Commission,  however,  the  British  ambassador  informed  Secre 
tary  Hay,  in  his  note  of  July  23,  1900,  that  the  Canadian  Government 
desired — 

"to  join  with  the  Government  of  the  United  States  in  an  examina 
tion  of  the  whole  of  the  southern  boundary  of  Canada  for  the  pur 
pose  of  re-establishing  the  lost  monuments  and  of  placing  such 
supplementary  monuments  as  may  appear  necessary  to  meet  modern 
requirements." 

This  portion  of  the  line  was  particularly  referred  to  among  others, 
and  in  connection  with  this  proposal  it  was  stated  that — 

"many  complaints  have  been  made  from  time  to  time  of  the  disap 
pearance  of  monuments  and  the  consequent  difficulty  of  determin 
ing  the  exact  position  of  the  boundary,  while  the  British  Columbia 
portion  of  the  line  was  in  November,  1892,  the  subject  of  a  formal 
request  by  the  Lieutenant-Governor  in  Council  for  not  only  a  re-estab 
lishment  of  lost  posts,  but  also  for  an  additional  or  supplementary 
survey,  on  the  ground  that  the  demarcation  by  the  Commissioners 
was  not  sufficiently  complete  for  modern  requirements." 

West  of  the  Rocky  Mountains. 

This  suggestion  was  supplemented  by  a  note  on  January  14, 
1901,  from  the  British  ambassador  to  the  Secretary  of  State  calling 
attention  to  the  importance  that  joint  measures  be  taken  for  the 
examination  of  the  whole  of  the  49th  parallel  of  latitude  west  of 
the  Rocky  Mountains  with  a  view  to  the  better  demarcation  of  this 
boundary,  and  more  especially  at  three  points,  to  wit:  (i)  Near 


8o 

Tobacco  Plains,  in  the  East  Kootenai   District;   (2)   between  Grand 
Forks  and  Midway;  and  (3)   near  Chilliwack,  north  of  Mount  Baker. 
Secretary  Hay  replied,   on  January  29,  1901,  acquiescing  in  the 
suggestion  and  stating  that — 

"the  inconveniences  and  uncertainties  attending  the  absence  of 
boundary  marks  in  many  places  of  the  northwestern  line  which  were 
unsettled  and  virtually  inaccessible  when  the  Commissioners  under 
the  Treaty  of  1846  set  the  line,  but  to  which  the  discovery  of  min 
eral  deposits  is  now  attracting  settlers,  have  been  lately  brought 
with  urgency  to  the  attention  of  this  Government,  and  the  sugges 
tion  of  a  joint  demarcation  was  under  consideration  at  the  time  of 
the  receipt  of  your  note." 

He  expressed  the  opinion,  however,  that  the  proposed  joint  ac 
tion  of  the  two  Governments  would  require  an  express  convention, 
and  suggested  that  such  convention  should  provide  for  the  reloca 
tion  or  ascertainment  of  all  the  defective  parts  of  the  western  bound 
ary  under  existing  treaties  from  Lake  Superior  to  the  Pacific  Ocean. 
He  also  stated  that — 

"It  is  the  purpose  of  the  United  States  Government  to  dispatch 
forthwith  to  the  State  of  Washington  a  surveying  party  to  make  a 
reconnaissance  of  the  region  through  which  the  boundary  parallel 
runs,  to  the  end  that  the  information  so  to  be  procured  may  be 
made  use  of  for  the  purposes  of  the  suggested  convention,  or  to 
aid  toward  the  conclusion  of  an  intervening  partial  delimitation  as 
a  modus  vivcndi" 

In  this  connection  Secretary  Hay  requested  that  this  Government 
be  supplied  with  copies  of  the  pertinent  field  notes  and  maps  pre 
served  by  the  British  Commissioners  who  took  part  in  the  western 
division  of  the  northwestern  survey. 

In  answer  to  Secretary  Hay's  proposal,  the  British  ambassador 
wrote  on  April  4,  1901,  stating  that  the  proposal  was  in  accord  with 
the  desire  of  the  Canadian  Government  as  previously  expressed, 
differing  therefrom  only  in  the  proposition  that  the  action  necessary 
should  be  provided  for  by  a  formal  convention,  and  on  behalf  of  the 
Canadian  Government  he  acceded  to  that  proposition.  In  response 
to  the  request  for  copies  of  the  field  notes  and  maps  of  the  British 
Boundary  Commission  on  the  western  division  of  the  boundary,  the 
Canadian  Government  reported  that  there  did  not  appear  to  be  any 
record  of  the  work  done  on  this  portion  of  the  line  with  the  exception 
of  a  volume  of  maps  printed  in  the  Ordnance  Survey  Office  at  South 
ampton,  a  copy  of  which  was  preserved  in  the  Canadian  Department 
of  the  Interior,  which  volume  contained  in  addition  to  the  maps — 

"a  list  of  monuments,  their  distances  apart,  their  geographical  and 
topographical  positions,  and  their  kind,  whether  iron,  stone,  or 
earth." 


8i 

Photographic  copies  of  these  maps  and  documents  were  offered  to 
the  United  States  Government  if  desired.  It  was  further  stated  that — 

"a  search  was  made  in  London  a  few  years  ago  by  an  officer  of  the 
Department  of  the  Interior  for  field  notes  of  this  line,  but  without 
success." 

The  request  for  copies  of  these  documents  was  subsequently 
withdrawn  for  the  reason,  as  appears  in  Secretary  Hay's  note  of 
April  17,  1901,  to  the  British  ambassador,  that  after  consultation 
with  the  Superintendent  of  the  Coast  and  Geodetic  Survey  the  con 
clusion  was  reached  that  the  information  contained  in  the  maps  and 
documents  referred  to  was  on  file  in  the  Department  of  State.  (See 
also  letter  of  April  n,  1901,  from  Charles  D.  Walcott,  Director  of 
the  United  States  Geological  Survey,  to  the  Secretary  of  State.) 

On  April  3,  1902,  Secretary  Hay  wrote  to  the  British  ambassador 
to  inform  him  that  during  the  past  year  the  contemplated  examina 
tion  above  referred  to  of  the  boundary  had  been  completed  by  offi 
cers  of  the  Government,  "who  made  a  careful  survey  of  the  boundary 
along  the  49th  parallel  west  of  the  Rocky  Mountains  to  its  western 
terminus  on  the  coast,"  and  that  their  report  disclosed  the  fact  that 
the  original  monuments  were  for  the  most  part  in  a  good  state  of 
preservation  and  the  location  of  those  which  had  disappeared  could 
be  recovered.  He  sums  up  the  situation  as  follows: 

"It  appears,  therefore,  that  the  boundary  established  by  the 
Joint  Commission  under  the  Treaty  of  1846  is  at  the  present  time 
marked  by  visible  monuments  at  irregular  intervals,  and  that  what 
remains  to  be  done  in  order  to  render  the  marking  thoroughly 
effective  for  the  requirements  of  the  present  time  and  of  the  future 
is  merely  the  replacement  of  the  old  monuments  by  more  permanent 
ones  and  the  interpolation  of  intermediate  monuments  at  convenient 
points  along  the  existent  established  boundary." 

In  view  of  the  situation  thus  disclosed,  Secretary  Hay  withdrew 
his  earlier  suggestion  that  a  new  convention  was  necessary  for  the 
demarcation  of  the  boundary,  stating  that  under  existing  conditions 
it  seemed  practicable — 

"to  provide  for  the  immediate  marking  of  the  boundary  by  the 
joint  action  of  competent  field  parties  appointed  to  that  end  by  the 
respective  Governments;" 

and,  in  conclusion,  he  suggested  that  on  the  part  of  Canada  an  officer 
or  officers  be  designated  to — 

"confer  with  the  Superintendent  of  the  United  States  Coast  and 
Geodetic  Survey  and  the  Director  of  the  United  States  Geological 
Survey  for  the  purpose  of  arranging  necessary  details  for  restoring 
the  original  monuments  and  establishing  additional  ones  in  order  to 
improve  and  render  more  effective  the  boundary  marked  and  agreed 
upon  by  the  Joint  Commission  of  1856  to  1869." 


82 

It  will  be  observed  that  Secretary  Hay's  proposal  as  here  made 
related  only  to  the  portion  of  the  boundary  west  of  the  Rocky  Moun 
tains.  The  British  embassy,  however,  in  notifying  the  Department 
of  State  of  Great  Britain's  acceptance  of  the  proposal,  seems  to  have 
assumed  that  it  applied  to  the  entire  distance  from  Lake  Superior 
to  the  Pacific,  and  with  that  understanding  Mr.  W.  F.  King,  Chief 
Astronomer  of  the  Canadian  Department  of  the  Interior,  was  desig 
nated  as  the  representative  of  the  British  Government  to  arrange 
details  and  carry  out  the  work.  (Note  of  August  9,  1902,  Mr. 
Raikes  to  Mr.  Adee.) 

In  acknowledging  the  notification  of  Mr.  King's  appointment, 
with  respect  to  the  entire  boundary  from  Lake  Superior  to  the 
Pacific  Ocean,  the  Department  of  State  on  August  13,  1902,  in  turn 
informed  the  British  embassy  that  "the  representative  of  the  United 
States  for  this  work  is  Mr.  Otto  H.  Tittmann,  the  Superintendent  of 
the  United  States  Coast  and  Geodetic  Survey." 

•Under  the  sundry  civil  appropriation  act  approved  March  3, 
1903,  however,  Congress  authorized  only  the  work  of  marking  and 
mapping  that  portion  of  the  49th  parallel  between  the  summit  of  the 
Rocky  Mountains  and  Point  Roberts,  and  on  June  9,  1903,  Secretary 
Hay  authorized  both  Charles  D.  Walcott,  Director  of  the  United 
States  Geological  Survey,  and  O.  H.  Tittmann,  Superintendent  of 
the  United  States  Coast  and  Geodetic  Survey,  "to  sign  as  United 
States  Commissioners  in  all  matters  relating  to  the  work  of  marking 
and  mapping  that  portion  of  the  boundary,  including  the  signature 
with  the  British  Commissioner  of  the  final  report  and  maps." 

The  arrangements  for  the  joint  action  of  the  two  Governments 
in  remonumenting  and  otherwise  marking  the  boundary  from  the 
Rocky  Mountains  to  Point  Roberts  were  soon  thereafter  perfected 
by  the  Commissioners  above  named  on  the  part  of  each  Government, 
and  under  their  direction  the  work  has  since  been  carried  on  and  is 
understood  to  be  now  nearing  completion. 

East  of  the  Rocky  Mountains. 

The  question  of  re-marking  this  portion  of  the  line  has  not  been 
carried  beyond  the  expression  of  a  concurrence  of  views  between 
the  two  Governments  as  to  the  desirability  of  joint  action  in  that 
direction,  with  the  exception  of  the  resurvey  at  the  point  referred 
to  below. 

On  November  14,  1905,  Mr.  W.  F.  King,  the  Commissioner  ap 
pointed  as  above  stated  to  represent  Canada  in  any  joint  action  that 
might  be  undertaken  in  remonumenting  this  part  of  the  line,  wrote 
to  Mr.  Tittmann,  the  Superintendent  of  the  United  States  Coast 


83 

and  Geodetic  Survey,  stating  that  he  had  been  requested  to  mark 
the  boundary  line  along  the  49th  parallel  at  North  Portal  Station 
on  the  St.  Paul  and  Moose  Jaw  branch  of  the  Canadian  Pacific  Rail 
road,  in  longitude  about  132°  30',  not  very  far  from  the  middle  of 
the  prairie  section  of  the  boundary  line,  and  that  if  it  was  agreeable 
to  Mr.  Tittmann  and  Doctor  Walcott,  who  were  the  Commissioners 
appointed  on  the  part,  of  the  United  States  to  supervise  the  re 
marking  of  the  line  west  of  the  Rocky  Mountains,  he  would  send  a 
surveyor  to  mark  the  line  at  the  point  indicated,  with  the  under 
standing  that  this  marking  was  temporary,  pending  the  making  of 
the  joint  survey. 

Mr.  Tittmann  notified  the  Secretary  of  State  on  November  17, 
1905,  of  the  receipt  of  this  note,  expressing  the  opinion  that  he 
deemed  it  desirable  to  conduct  such  operations  jointly  for  obvious 
reasons,  but  calling  attention  to  the  fact  that  the  appropriation 
made  for  the  survey  of  the  49th  parallel  west  of  the  Rocky  Moun 
tains  was  not  applicable  to  surveys  between  Lake  Superior  and  the 
Rocky  Mountains.  On  the  following  day  the  Secretary  of  State 
wrote  to  the  Secretary  of  Commerce  and  Labor  requesting  that  the 
Superintendent  of  the  Coast  and  Geodetic  Survey  be  detailed  to 
carry  out  the  wishes  of  the  Department  of  State  in  making  the 
proposed  survey  at  and  in  the  neighborhood  of  Portal,  N.  Dak.  This 
was  done  and  the  work  was  undertaken  as  proposed,  and  it  is  under 
stood  to  be  now  nearing  completion. 


SEVERAL  SMALL  SECTIONS  OF  UNITED  STATES  TERRITORY  SEPA 
RATED  FROM  THE  UNITED  STATES  BY  THE  BOUNDARY  AS  LAID 
DOWN  AT  THE  NORTHWEST  ANGLE  OF  THE  LAKE  OF  THE  WOODS. 

A  question  of  considerable  importance  and  interest  has  arisen  in 
connection  with  the  course  of  the  line  from  the  northwesternmost 
point  of  the  Lake  of  the  Woods  south  to  the  49th  parallel. 

The  course  of  the  boundary  from  Lake  Superior  through  the 
Lake  of  the  Woods  as  it  approaches  the  northwesternmost  point 
passes  in  several  instances  back  and  forth  across  the  line  drawn  due 
south  from  the  northwesternmost  point  to  the  49th  parallel,  thus 
making  a  series  of  loops  embracing  small  sections  of  water  and  land 
in  some  instances,  which,  strictly  speaking,  lie  on  the  American  side 
of  the  boundary  lines  but  are  entirely  surrounded  by  Canadian 
territory. 

On  April  26,  1904,  Mr.  W.  A.  Richards,  Commissioner  of  Public 
Lands  in  the  Department  of  the  Interior,  wrote  to  the  Secretary  of 
the  Interior,  calling  this  circumstance  to  his  attention.  He  stated 
in  regard  to  it  that  his  office  had  theretofore  proceeded  on  the  theory 


84 

that  the  lands  within  these  loops  belonged  to  the  United  States,  and 
he  was  inclined  to  adhere  to  that  conclusion;  but,  as  the  question 
was  not  entirely  without  doubt,  he  requested  that  it  be  given  serious 
consideration  before  definite  action  was  taken  to  dispose  of  the  sec 
tions  of  land  referred  to.  These  lands,  he  stated,  had  been  surveyed 
by  this  Government  as  a  part  of  the  Chippewa  ceded  Indian  lands 
to  be  disposed  of  under  the  act  of  January  14,  1889  (27  Stat.  642), 
as  amended  by  the  act  of  June  27,  1902  (32  Stat.  400),  known  in  the 
Land  Office  records  as  Lot  I,  sec.  10,  T.  168  N.,  R.  35  W.,  5  P.  M. 
The  question  was  thereupon  referred,  on  May  21,  1904,  to  the 
Secretary  of  State,  with  a  request  for  the  views  of  the  Department 
in  regard  to  it.  An  opinion  on  the  question  was  thereafter  rendered 
by  the  Solicitor  for  the  Department  of  State,  from  which  opinion 
the  following  extract  is  taken : 

"But  the  line  described  in  the  Treaty,  running  from  Rainy  Lake 
to  the  said  most  northwest  point  was  a  meandering  line,  hence  as 
it  approached  to  within  about  one  mile  from  the  northwest  point  it 
crossed  and  recrossed  the  meridional  boundary  line  thereby  enclos 
ing  small  parcels  of  land  in  the  loops  formed  by  the  intersections  of 
the  meandering  and  the  meridional  lines. 

"One  of  these  parcels  containing  twelve  and  five  one-hundredth 
(i2T|^Tr)  acres  has  been  surveyed  by  the  Land  Office,  as  a  part  of  the 
Chippewa  ceded  Indian  lands  which  are  to  be  disposed  of  pursuant 
to  the  Act  of  Congress  of  January  14,  1889,  as  amended  by  the  act 
of  June  27,  1902.  The  question  raised  is  whether  this  parcel  be 
longs  to  the  United  States  or  Canada,  and  involves  the  question  of 
jurisdiction  between  the  two  Governments. 

"It  has  been  suggested  that  since  it  was  the  intendment  of  the 
treaty  to  settle  finally  the  continuous  boundary  line  between  the 
two  countries,  all  that  portion  of  the  line  described  in  the  treaty 
which  lies  north  of  the  first  intersection  of  the  meandering  and  the 
meridional  lines  should  be  rejected.  This  would  leave  a  single  con 
tinuous  boundary  line  running  along  the  line  described  from  Rainy 
Lake  to  its  first  point  of  intersection  with  the  meridian  line,  thence 
south  along  the  meridian  line  to  the  49th  parallel,  thence  west  to 
the  Rocky  Mountains.  This  interpretation  would  set  aside  all  that 
portion  of  the  described  meandering  line  which  extends  from  the 
first  point  of  intersection  to  the  northwest  point  and  would  also  set 
aside  the  northwest  point  as  a  point  in  the  boundary  line  mentioned 
in  the  three  treaties,  and  would  convert  it  into  a  mere  starting  point 
to  find  the  boundary  line. 

"If  either  the  United  States  or  Canada  should  attempt  to  exer 
cise  jurisdiction  over  either  of  the  small  conclaves  within  the  loops, 
the  title  to  which  each  Government  had  claimed  and  which  neither 
had  granted  to  the  other,  it  could  only  be  asserted  on  behalf  of 
Canada  by  rejecting  an  integral  part  of  the  lines  described  in  the 
Treaty,  and  could  only  be  asserted  by  the  United  States  Government 
by  its  claiming  lands  partly  lying  west  of  the  said  meridian  and 
north  of  the  east  portion  of  the  boundary  line  along  the  49th  parallel 


85 

and  by  insisting  on  title  to  lands  included  in  the  loops  simply 
because  enclosed,  although  not  granted  to  it.  Before  the  treaties 
were  formed,  both  parties  claimed  these  lands;  they  have  not  agreed 
to  their  division  or  distribution,  unless  we  accept  the  interpretation 
of  the  treaty  above  mentioned,  in  order  to  effectuate  its  manifest 
intendment  to  settle  the  northwest  boundary.  As  to  this,  no  opinion 
is  expressed. 

"In  view  of  the  premises  it  would  not  seem  advisable  to  make 
the  disposition  of  the  lands  now  under  consideration  by  the  Land 
Office." 

This  opinion  was  adopted  by  the  Secretary  of  State  and  com 
municated  by  him  to  the  Secretary  of  the  Interior  in  his  letter  of 
June  25,  1904. 


U.C.  BERKELEY  LIBRARIES 


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RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 


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